' ZAFFAR HUSSAIN MIRZA, J.-This judgment will dispose of Constitutional Petitions Nos. 171 and 172 of 1972 as both these petitions raise common questions of law and a common argument was raised by the counsel for the parties.
2. The facts which give rise to these petitions may be briefly stated as follows :- ' Const. Petition No, 71/72.-The Chief Controller of Imports & Exports, Karachi issued five Export Performance Licences to the petitioners for import of packing material on 27th February, 1968, 24th April, 1968, 15th May, 1968, 12th June, 1968 and 11th May, 1968 respectively for different value for the import of packing material, inter alia, detailed as under :-- "Viscose Packing & Wrapping Film and Plastic Wrapping film excluding Celluphane Paper, IV/Misc.
2/21 not exceeding 10% of L. V."
' The petitioners under the said Licences, inter alia imported the following material.
(i) Glossy Colourless Transparent Plain and Unprinted Plastic Wrapping Film of a gauge of 0.1. Mm.
(ii)Printed and Embossed Plastic Sheets.
' Upon arrival of the goods the Customs Authorities refused to clear the same on the ground that the goods imported under the aforesaid Licences were not covered by them and required the petitioners to produce Licences under Part-IV/Misc-1/9 (ii) of the old I. T. C, Schedule for specific gauge for the first item and Part-IV/Misc. 2/23 of the said Schedule for the second item.
3. On 11th November, 1968 the Deputy Collector of Customs (Appraising), Karachi issued three show-cause notices in identical terms in respect of the consignments. Since the show-cause notices are identical it will be sufficient to set out below one of the show-cause notices which reads as under :- SHOW-CAUSE NOTICE "Subject.-Importation of 157 Pkgs-Plastic Wrapping Films-Classy Colourless Transparent valued at Rs, 24,999/. C & F per s. s. Yamatsuki Maru IGM. No, 1098/30th September, 1968, Index Nos. 113, 114, 129 dated 18th October, 1968.
' Messrs Pakistan Fisheries Ltd. Karachi have imported the above noted consignment and sought release thereof against the Export Performance licence No, 625032 issued for Vispose Licence No, 625032 issued for Viscose packing and wrapping film and plastic wrapping film excluding cellophene paper under IV/Misc-2/21. On physical examination of the goods it has been found that the goods are "pigeon and `Sage Star Brand' Glossy Colourless transparent plain and unprinted plastic wrapping film of a gauge 0.10 mm as against 0.05 mm declared in the invoice and Bill of Entry. The goods are therefore not covered by the licence produced and require a licence under part IV/Misc-1/9 (ii) for the specific gauge which is not licenceable and stands as a totally banned item even in the Export Bonus Scheme.
(2) Since no valid licence has been produced and documents and declarations and statement made are untrue in material respect, the importers have contravened the provisions of section 19 of Sea Customs Act read with section 3 (a) of I & E (Control) Act, 1950 and also those of section 39 of Sea Customs Act. They are therefore, punishable under section 167 (8-b) of Sea Customs Act read with section 3 (3) of I & E (Control) Act, 1950 and also under section 167 (9-b) of Sea Customs Act.
(3) Messrs Pakistan Fisheries Ltd., Karachi are hereby called upon to submit their written explanation by or before 20th November, 1969 as to why action under the aforesaid sections should not be taken against them.
(4) Hearing in this case has been fixed for 26th November, 1969 at 11-00 a.m. On which date the importers, their accredited representative or a duly briefed lawyer may appear to represent the case.
(5) If no reply to the show-cause notice is received within the specified date or no one appears at the hearing, it will be presumed that the importers do not wish to contest the charges and the case will be decided ex-parte on its merits.
6th November, 1969 (Sd.)
MANSURUL HAQ, DEPUTY COLLECTOR OF CUSTOMS APPG."
' The petitioners submitted their explanation by their letter dated 20th November, 1969 in the following terms : "The Deputy Collector, c/o F. A. X Division III, Customs House, ' KARACHI.
' Dear Sir, ' Re : Import of 157 Pkgs. Plastic Wrapping Film Glossly Colourless Transparent s. s. Yamatsuki Maru IGM 1098 dated 30th September, 1968 Index Nos. 113, 114 & 129.
' Ref. Yours ITC/244/1/69 DIV. III Dated 11th January, 1969.
' With reference to your show-cause notice received at or office on 15th November, 1969, we have to inform you, that the goods were indented through Messrs Allied Mercantile Syndicate Karachi a photo copy of which is enclosed for your perusal and accordingly the letter of credit (photo copy enclosed) was appended against your Licence Nos. 625032 & 819497 issued for viscose Packing and Wrapping Film and Plastic Wrapping Film excluding Cellophans paper. Thus you will observe from the copy of L/c. That we have placed the orders only in accordance with the indent and Import Licence for the wrapping film only.
' On receipt of documents from the shippers, the Bill of Entry was filed describing the goods as Glossy Colourless transparent plain and unprinted plastic wrapping film. We had not the slightest idea that the goods will differ with the order placed. We were rather surprised to note, that the goods were different, only at the time of examination. We had no prior knowledge of these goods being sent to us against or indent.
' We, in view of the foregoing explanation, request you to very kindly release the goods.
' Thanking you, Yours faithfully, FOR PAKISTAN FISHERIES LIMITED."
' Thereupon respondent No. 1 passed order dated 10th January, 1970 confiscating the goods under sections 167 (8-b) and (9-b) of the Sea Customs Act read with section 3 (3) of the Imports & Exports (Control) Act, 1950 giving the petitioners option to pay a fine of Rs, 50,000, Rs, 12,000 and Rs, 22,000 respectively in respect of the Show-Cause Notice in lieu of confiscation. The petitioners challenged the said orders in appeal before the Collector of Customs (respondent No, 2) which was partly allowed inasmuch as, orders of confiscation were maintained, but the fine amount was reduced to Rs, 37,000, Rs, 9,000 and Rs, 16,000 respectively vide order dated 25th June, 1970. The Government of Pakistan in revision filed by the petitioners further reduced the redemption fine/penalty to 100% of the C. & F. Value of the goods.
4. Const. Petition No, 172/72.-In this case also the Chief Controller of Imports & Exports, Karachi issued an Export Performance Licence to the petitioners for import of packing material including "Viscose packing & Wrapping Film Misc. 2/-21 not exceeding 10% of L. V. ". The petitioners under the said Licence, inter alia, imported 31 Cartons of plain and Embossed Plastic-sheets of 0.17 m.m thickness. Upon the arrival of the said goods the Customs Authorities refused to clear the goods on the same ground that the goods imported were not covered by the Import Licence. On 18th November, 1968 the Assistant Collector of Customs (Appraising), Karachi, respondent No. 1 herein, issued a show-cause notice to the petitioners requiring them to show cause why action should not be taken against them for contravention of sections 19 and 37 of the Sea Customs Act read with section 3 (1) of Imports and Exports (Control) Act, 1950. The show-cause notice reads as under :- "SHOW-CAUSE NOTICE ' Subject : Importation of 31 cartons Glossy Colourless Transparent Plain & unprinted plastic wrapping film-valued at Rs, 4070 C & F from Japan per s. s. YAM ATERU MARU, IGM No, 1250/6th November, 1968 Index No, 260 dated 23rd November, 1968.
' Messr s International Fisheries (Pakistan) Ltd., Jubiles Ins. House, McLeod Road. Karachi, have imported the above noted consign- ment and sought release thereof against an export performance licence No, 625033 issued for Viscose packing & Wrapping films and plastic wrapping film excluding cellephane paper under 1V/Misc. 2/ 21 of the I. T. C. Schedule. The letter of credit No, 59/162 for the said goods was established on 24th August, 1969. On physical examination of the goods it has been found that the consignment consists of (i) plain plastic sheets of 0.17 mm and
(2) Embossed plastic sheets of 0,17 mm which requires a Licence under IV/ Misc. 1/9 (ii) specific for thickness below 10/1000" and IV/Misc. 2/ 23 respectively.
(2) Besides plain plastic sheets of 36" width have been invoiced at 81-d per yard as against 9.5/8d per yd. " vide evidence enclosed of the same supplier. The discrepancy if not detected would have resulted in a loss of revenue to the tune of Rs, 308.
(3) Since no valid licence has been produced and documents delivered and declarations and statement made are untrue in material respect, the importers have contravened the provisions of section 19 of Sea Customs Act read with section 3 (1) of I & E (Control) Act, 1950 and also under section 39 of Sea Customs Act. They are therefore, punishable under section 167 (8-b) of Sea Customs Act read with section 3 (3) of I & E (Control) Act, 1950 and also under section 167 (9-b) of Sea Customs Act.
(4) Messrs International Fisheries (Pak.) Ltd., Karachi are hereby called upon to submit their written explanation by or before 28th November, 1969 as to why action under the aforesaid sections should not be taken against them.
(5) Hearing in this case has been fixed for 3rd December 1969 at 9-10 a.m. On which date the importers, their accreditors representative or a duly briefed lawyer may appear to represent the case.
(6) If no reply to the show-cause notice is received within the speci. Tied date or no one appear at the hearing, it will be presumed that the importers do not wish to contest the charges and the case will be decided ex parte on its merits.
(sd.)
(AQIL AHMED KHAN), PC&ES Assistant Collector of Customs Appraising III."
' The petitioners submitted their explanation by their letter dated 17th November, 1969 in the following terms :- The Assistant Collector of Customs, C.
0. P. A. X.
Division House, Karachi Dear Sir, Re :-Import of 31 cartons Glossy Colourless Transparent Plain and unprinted plastic Wrapping Film/Yamateru Maru IGM 1250/6th November, 1968 Index No, 260.
Reference your Show-Cause Notice No, ITC-247/1/69 VIII D.III dated 18th November. 1969, we have to inform you, that the goods were indented through Messrs Allied Mercantile Syndicate, Karachi and the letter of Credit was opened accordingly against Import Licence No, 625033.
' It was only at the time of examination by the Customs, to or surprise, we found that the goods are differing with that of or order.
' The documents we filed were describing the goods as "pigeon" brand Glossy Colourless Transparent Plain and Unprinted Plastic Wrapping Film, which cleanly proves that we were not in the know of the goods, actually shipped.
' Further, the allegation that or unit price is 81d per yard is not correct. If you would please refer to or invoice copy enclosed, you will observe, that or unit price is 9.406 d per yard and not 81d as alleged by you.
' We, therefore, request you, to very kindly, reconsider or case, in the light of the foregoing facts and release the consignment. Thanking you, Yours faithfully, FOR INTERNATIONAL FISHERIES (PAKISTAN LIMITED)."
' The respondent No. 1 was, however, not satisfied with their explanation and by his order dated 8th January, 1970 confiscated the goods under the same provisions as in thc previous case giving the petitioners option to pay redemption fine of Rs, 4,000 and also imposed a personal penalty of Rs, 2,000 on the petitioners. The petitioners filed appeal which was dismissed by the Collector of Customs, Karachi, respondent No, 2 herein, by his order dated 25th June, 1970. The petitioners then filed a revision before the Government of Pakistan, respondent No, 3 herein, in which the order of confiscation was maintained but the redemption fine/penalty was reduced to 100% of the C & F value of the goods. The petitioners in both cases, therefore, now seek to challenge the orders passed by the respondents as passed without lawful authority and having no legal effect. They also seek a direction for refund of amount of fine and penalty and for issue of a certificate that the delay in the release of the goods was not on account of any default on the part of petitioners so that they may get a refund of the payments made towards demurrage to Karachi Port Trust.
5. In support of these petitions it was first contended that the goods imported under the Import Licences in question conformed to and fall within the I. T. C. Classification for which the licences were issued, but the respondents held the same not to be covered by the said Classification on the basis of an office circular which not having been notified under section 3 of the Imports & Exports (Control) Act, 1950 does not have the force of law. As mentioned earlier, the Import Licences were issued for the goods under I. T. C. Classification, Item No, 21 PART-IV, Group Misc. 2 which is described as under :- "Viscose packing and wrapping film and plastic wrapping film, such as "Viscacella", "Cellophane", "Rayeseine", etc.".
According to the finding of the Customs the goods fell within the Classification under Item No, 9 (ii) of Part-IV, Misc. 1 which is described as under "Unwrought plastic sheets, rods, tubes and other profiles, rigid or flexible, imported as raw material for industrial use."
' The clarification issued by the Controller of Imports & Exports, Karachi dated 4th May, 1968 in relation to I. T. C. Classification of plastic sheets and plastic wrapping film, referred to by the learned counsel may be reproduced as under :- CIRCULAR ' Subject : I. T. C. Classification of Plastic sheets & Plastic Wrapping film. Question having arisen regarding the correct classification of plastic sheet, plain and others and regarding differentiation between plastic sheets and plastic wrapping film under schedule annexed to the Import Trade Control Notification No, 335/260/24 dated 12th June, 1951, as amended from time to time, the CCI & E after due consideration is pleased to rule as under :- SL No, DESCRIPTION OF I. T. C.
MATERIAL CLASSIFICATION
(1) Plastic sheet plain IV/Misc-1/9 (ii)
(2) (1) Plastic sheet printed and/or embossed IV/Misc-2/23
(ii) Plastic sheet pasted with velvet or metal IV/Misc-2/23 strip etc. ' It has further been ruled that the maximum gauge of bona fide plastic wrapping film is 0.05 mm and that where this is exceeded appropriate classification would be either IC/Misc. 1/9 (ii) or IV/Misc. 2/23.
' All previous communication issued in this respect be treated as cancelled.
(Sd.) shoukat Hussain, Assistant Controller of Imports & Exports, Karachi.'
' The contention of the counsel was that the restriction with regard to the maximum gauge for plastic wrapping film at 0.05 mm. Exceeding which the goods were held to fall under either Item IV/Misc. 1/9 (ii) or 'e' IV/Misc. 2/23 is an addition which was not incorporated in the Import. Policy notified for the relevant shipping period and, therefore, goods falling under Item IV/Misc. 2/21 could be imported without restriction as to gauge. This contention was repelled by the Government of Pakistan while disposing of the revision filed by the petitioners on the ground that the circular mentioned above was merely in the nature of a clarification of an already existing statutory provision and, therefore, it did not require to be notified in the Official Gazette. It has been urged on behalf of the respondents before us that the classification of the .Goods has not been changed by the notification and the clarification was issued only for the guidance of the departmental authorities. Learned counsel for the respondents has placed before us the relevant Import Trade Control Order dated 12th January, 1968 published in the Gazette of Pakistan, Extraordinary dated 15th January, 1968. Item No,: 217 under the Export Bonus Scheme corresponding to the goods under I. T. C. Classification 9 (ii) has been described as under :- plastic rods, tubes and other profiles and unwrought plastic sheets 10/1000 in and above."
' The goods corresponding to I. T. C. Classification IV/Misc. 2/21 have been mentioned at Serial No, 242 as-follows : "Viscose packing and wrapping film (excluding Celluphane p aper)."
It, therefore, appears to us that plastic sheets of gauge 10/1000 in or above in thickness would fall under Item 9 (ii) and not under Item 21. In any case the question whether the goods in dispute fell within the Classification for which the licence was issued or some other classification, in the circumstances of the present case is a question of fact and no material has been plated on record what was the nature of the goods imported by, the petitioners. It seems to us that the two classifications in question both can cover plastic sheets and as such it will be improper for us to attempt to decide this question of fact in these proceedings. It cannot be denied that it is within the jurisdiction of the Customs Officers to determine the question whether the imported goods are covered by the Classification mentioned in the import licence.
6. Be that as it may, the petitioners' case before, the departmental authorities was not that the goods imported by them fell within Item 21 under which the licence was issued, but their contention was that they had not intentionally imported goods of different nature than the one for which the licence was issued. They were not, however, able to substantiate their explanation before the respondents that the consignment was wrongly despatched by the foreign supplier against a correct order. For goods failing under Classification 1V/Misc.
2121. The action taken by the respondents was admittedly based on the physical examination of the, goods in the presence of the petitioners. No objection was taken by the petitioners that the goods were not of different nature from those mentioned in the import licence. The petitioners cannot be allowed at this stage to plead a different case that these goods fall within the Classification for which the licence was issued,- We, therefore, find no substance in the first contention of the learned counsel for the petitioners.
7. It was next contended that similar contravention made by the other importers was disposed of by the respondents on a penalty of 15% of the C & F value of the goods imported and, therefore, the order is discriminatory and mala fide. The orders passed in the cases referred to have not been placed on record and, therefore, we are not in a position to determine whether the quantum of penalty imposed in those cases was on identical facts. In any case this is no ground for holding that the impugned orders which were passed in exercise of lawful jurisdiction would be rendered illegal and without jurisdiction merely on the basis of the quantum of fine imposed being different from similar cases.
8. No other contention was raised in support of the petitions.
9. In the result, we find no force in these petitions, which are accordingly dismissed with costs,