1. MUNAWAR ALI KHAN, J.-This petition which was filed on 12-6-1973 arose from the facts which, in brief, are stated as follows ; Petitioner Abdur Rehman doing business in the name. Patni Abdur Rehman & Company, Kachi Gali No. 1, Jodia Bazar, Karachi imported three consignments of Jute Twine which reached Karachi by three different ships. The goods classified under item Exh. 59.04 of the Pakistan Custom Tariff and the custom duty was accordingly assessed at the rate of 25 %. The petitioner paid the customs duty together with the sales tax assessed at the rate of 10 % as under :- "(i) Customs duty and sales tax on the consignment arriving per s.s. Warsak, IGM No. 1026/6-10-72 Index No. 223 paid on 21-10-1972 by pay order... Rs. 1,11,119.02.
(ii) Customs duty and sales tax & R. A. Tax on the consignment arriving per s.s. Cherry Venture IGM No. 1136/4-11-72 paid on 20-11-1972 by pay order .... Rs. 33,498.50.
(iii) Customs duty and sales tax & R. A. Tax on the consignment arriving per s.s. Mansoor, IGM No. 1023/5-10-72 Index No. 20 paid on 17-10-1972 by pay order... Rs. 57,577.00."
2. However, in February, 1973 he received three demand notices dated 5-2-1973, 9-2-1973 and 13-2- 1972 issued by the Principal Appraiser, acting for Assistant Collector Customs, whereby the petitioner was informed that the custom duty on the aforesaid consignments of Jute Twine was short levied, as it was levied at the rate of 25 % instead of 50 %, the actual rate of assess--ment. He was therefore, required to pay up deficiency in duty within the period specified in the notice. The petitioner paid no heed to these notices until 30-5-1973 when final notice was issued to him. It was against this notice that the petitioner filed this petition with prayer that it be declared to have been issued without lawful authority and was therefore of no legal effect and in consequence the respondent namely the Assistant Collector Customs be restrained from making recovery of the alleged deficient amount of the custom duty.
3. Mr. Abdul Aziz, learned counsel for the petitioner attacked the demand notice dated 30-5-1973 on the following grounds;- "(i) that the initial notices proceeding the demand notice dated 30-5-1973 were issued under the Old Sea Customs Act, 1887 which is no longer in force and has been repeated and replaced by new law-namely Customs Act, 1969 ;
(ii) that as required by subsections (3) and (4) of section 32 of the new Customs Act, 1969, the petitioner was not given show-cause notice before calling upon him to pay shortfall in the customs duty ;
(iii) that the amount of short levy has been determined by an authority who was not competent under the law to do so."
4. As for the first objection, Mr. Aziz Munshi, learned Deputy Attorney --General submitted that since the old printed forms were used for the purpose of issuing the initial notices, it was through oversight that in the said forms relevant provisions of new law were not substituted in place of the provision of the old law. According to him notwithstanding this error, the notices would be deemed to have been issued under the new law. In our opinion the argument is not without force. It similar power of issuing demand notice is available even under the new law, mere omission to substitute the provisions of the new law would not rob the notices of their validity. We have no doubt in our mind that the new law does provide the power and procedure for recovery of short levy of the custom duty. This position is not denied even by the learned counsel for the petitioner. In this connection reference may be made to section 32 of the new law (i.e. Customs Act, 1969).
5. Accordingly we find that the first objection raised by the petitioner's counsel is of no material help to him.
6. Coming to his second contention, it may be useful to reproduce sub--sections (3) and (4) of section 32 of the Customs Act, 1969 on which the learned counsel for the petitioner has placed reliance. They are as under;-- "(3) Where, by reason by any inadvertence, error or misconstruction, any duty or charge has not been levied or has been short-levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within four months of the relevant date, requiring him to show cause why he should not pay the amount specified in the notice.
(4) The appropriate officer, after considering the representation, if any, of such person as is referred to in subsection (2) or subsection (3) shall determine the amount of duty payable by him which shall in no case exceed the amount specified in the notice and such person shall pay the amount so determined."
7. It would be noticed that as . Required by subsection (3), in case of error in assessment, the person liable to pay the short fall shall be served with notice within four months of the relevant date, requiring him to show cause why he should not pay the amount specified I n the notice. As pointed out above the relevant dates in respect of three consignments on which the duty wag paid were 21-10-1972, 20-11-1972 and 17-10-1972. As against these dates, the initial notices were shown to have been despatched on 13-2-1973, 10-2-1973 and 13-2-1973. Thus these notices were within the time limit {i.e. Four months) laid down in the above subsection. The learned Deputy Attorney-General argued that these notices could well be treated as show-- cause notices within the meaning of the subsection (3). He pointed out that the printed words in the end of the notices which required the petitioner to make representation if any, in regard to the demand given in the notices within the period of 15 days of the date of the demand clearly placed them in the category of show-cause notices. We are inclined to agree with his view that initial notices mentioned above fulfil the requirements of sub--section (3), as they gave option to the petitioner to represent against the demand of the additional duty within the specified period if he so desired. .However, he did not avail the opportunity and instead be rushed to this Court in the writ petition.
8. The learned counsel for the .Petitioner, however, contended that as required by subsection (4) of section 32 referred to above, "appropriate officer", after considering the representation, if any had to determine the shortage in duty payable by the person served with show-cause notice under subsection (3) which, according to him, was not done in this case. The position, thus stated by the learned counsel does not appear to be correct. In the instant case the admitted position is that the petitioner did not prefer any representation on receipt of the initial notices. Therefore, the question of considering any representation within the meaning of subsection (4) by the "appropriate officer" did not arise. This being so, the next stage was r to determine the deficiency that the petitioner had to pay. Accordingly final notice of demand was issued on 30-5-1973 by which he was called upon to pay the amount specified in the notice. It is in the following term;-- "Please refer to this office demand notice of even No. Dated 3-3-1973. By mistake the consignment was assessed to duty (a3 25 % Under heading Exh. 59.04 while the same was correctly assessable to duty @ 50 under heading 59.04 thus there is short recovery.
(2) You are requested to pay the short levy amount within a fortnight from the date of issue of this letter, otherwise your future import will not be released and recovery will be made through District Magistrate as land Revenue."
9. Obviously this notice has seen made the basis of the petition. In view of the position stated above, we think that the learned counsel's grievance that no show-cause notice was given to the petitioner before calling upon him to pay the shortfall in the custom duty, was entirely without foundation. We are convinced that the requirements of the relevant law were fully met with. The petitioner was afforded an adequate opportunity to make representation against the initial demand notices. So much so that after 'sluing the said notices in the month of February, the Customs Authorities waited for more than three months before issuing the final notice referred to above. But as pointed above, the petitioner some how did not deem fit to make use of this long pause by making any representation against the demand notices.
10. The last objection raised by the learned petitioner's counsel is with regard to competence of the officer who issued the final demand notice. According to the learned counsel, Principal Appraiser who issued the said notice had no power to do so. He contended that he was not competent to determine the short-levy nor could he require the petitioner to make up the alleged deficiency in the customs duty. He further submitted that it was only "appropriate officer" who had the power and authority to issue such notices and determine the amount to be paid as short-levy.
11. Mr. Munshi's short reply to this argument was that so far initial demand notices were concerned, they could be issued by any officer of the department.
12. In support of his view he referred us to the wording of subsection (3) of section 32 above and explained that this subsection obviously does not require officer of any particular designation to issue the said notices. As regards issuance of final notice, he argued that it was issued by "Appropriate Officer" as required by subsection (4) of section 32.
13. It is not denied that the final demand notice dated 30-5-1973 was issued by Principal Appraiser acting for the Assistant Collector Customs. The question is whether Assistant Collector Customs is "Appropriate Officer". As defined in clause (b) of section 2 of the Customs Act, 1969 it means ; "in relation to any functions to be performed under this Act, the officer o customs to whom such functions have been assigned by or under this Act". According to section 3 of the Act, Assistant Collector Custom as well as Principal Appraiser fall within the category of officers of Customs. The next point to be considered is whether these officers have been assigned the power to determine custom duty "by or under this Act". That is to say whether they derive the power directly from the Act or they have been assigned such duty under the Act. Our attention has been drawn to Custom Manual which contains duties of Customs Officers and other procedural details. As per scheme of the Manual the Principal Appraiser who obviously works under Assistant Collector Customs plays an important role in assessm ent of custom duty. He has been assigned duties. inter alia, connected with scrutinizing and countersigning the Bills of Entry. All endorsements made by the Assessing Officers on Current Bills of Entry under completion whether under the first or second Appraisement System will have to be scrutinized and countersigned by the Principal Appraiser concerned. Thus it would be noticed that the Principal Appraiser and custom staff working under him are primarly concerned with assessment of duty. This being the position, the argument advanced on behalf of the petitioner that final notice was not issued by appropriate officer is totally unacceptable. We are of the view that notice had been issued by the competent authority namely `Appropriate Officer' and no exception can therefore be taken to its validity.
14. In course of his arguments the learned counsel for the petitioner however raised a technical objection as regards the existence of the Custom Manual. He submitted that the Manual which was in force immediately before enactment of the Customs Act, 1969 bas not been protected under the letter Act and has therefore become obsolete. We regret we cannot endorse this view of the learned counsel. In this connection we may refer to section 24 of the General Clauses Act, 1897 which clearly shows that unless it is otherwise expressly provided in the new enactment, any appointment, notification, order, scheme, rule, form or bye-law made or issued under the repealed law is to continue in force and . Shall be deemed to have been made or issued under the new law provided that it is not inconsistent with the provision of the new law. There is no express provision in the Customs Act, 1969 seeking to repeal the Customs Manual or any rule contained therein. On the contrary as provided in subsection (2) of section 221 of the Act, section 24 of the General Clauses Act, 1897 has been applied, which means that by virtue of that section the existing Customs Manual has been kept alive, subject of course to the condition that it will be inoperative to the extent of inconsistency with the new law. The learned counsel for the petitioner has not been able to point out any inconsistency between the Manual and the new Act. We, therefore, hold that the Manual may and can be looked into for identifying the duties of the Customs Officers. As has already been pointed out, the notice under consideration was competently issued by Principal Appraiser acting for the Assistant Collector Customs. The objection raised in this behalf has therefore no force in it.
15. While concluding his arguments, Mr. Aziz Munshi contended that the petitioner has not come with clean hands and therefore his petition can be dismissed for that reason. According to him Tariff classification given by the petitioner in the Bills of Entry was wrong. Instead of the classification ; 59.04 with corresponding rate of duty of 50 , the petitioner mentioned wrong classification ; Exh.
16. 59.04 with rate of duty of 25 %. As a result of this error the Customs Authorities were misled and consequently short-levied the duty. Although mentioning of incorrect classification and rate of assessm ent has not been denied, the learned counsel for the petitioner, however, argued that it was the duty of the concerned customs officer to verify all relevant details before under taking the assessm ent. He further submitted that as no allegations of fraud were made in the demand notice, this point could not be pleaded in course of the arguments. He submitted that in absence of such allegations mala fide intention could not be attributed to the petitioner at such belated stage. In support of the contention learned counsel relied upon AIR 1931 Rang. 177, AIR 1925 Oudh 142 and AIR 1932 P C 202. No doubt the plea of improper motive on the part of the petitioner was not raised at the initial stage of the litigation, still the fact remained that incorrect assessment of customs duty was due to mentioning of wrong factual position with regard to tariff classification and rate of assess--ment. It is true that if the Customs Authorities had not been negligent, the mishap would not have occurred. We nevertheless at the root of their negligence lies in the wrong statement of facts made by the petitioner.
17. Lastly, it was argued by the learned Deputy Attorney-General and very rightly that in view of the admitted position that the costume duty was short levied, the petitioner could not avoid paying the deficient amount by taking shelter behind any procedural irregularities. In this connection we find support from Supreme Court authority reported as Raunaq All v. Chief Settlement Commissioner PLD 1973 SC 236. Their Lordships of the Supreme Court were pleased to observe :--- "An order in the nature of a writ of certiorari or mandamus is discre--tionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest it legality, then the extraordinary jurisdiction ought not to be allowed to be invoked." ,After considering the material on record and the arguments addressee at Bar we have come to the conclusion that there is no force in the petition which is accordingly dismissed with no order as to costs.