1. AJMAL MIAN, J.-Since the above two petitions involve interpretation of common items of, the Import Policy issued under the Import Policy Ordinance, we intend to dispose of the above two petitions by this common judgment.
2. The brief facts leading to the filing of the above two Petitions are as follows:-
(a) 1149/80. -It seems that the petitioners had obtained an import licence of homeopathic- biochemic medicine under item 30-03 under the import policy gazetted in the Gazette of 6th July, 1978. The petitioners imported an item known ---Ginton Ginseng tonic--- from Korea. When the above consignment arrived at the port of Karachi, the Deputy Collector issued a show-cause notice dated 30-5-79, calling upon the petitioners to show cause, as to why action should not be taken for contravention of the provisions of section 16 of the Customs Act, 1969 reap with section 3(I) I & E Control Act, 1950, as the petitioners did not have any valid licence for the import of the above item. The petitioners submitted their objections to the above show-cause notice, but the Deputy Collector through his order dated 1-8-1979 held that the item in question was a banned item in view the clarification issued by the Imports and Exports Authorities through a circular dated 13-9-1978 and in consequence thereof, he confiscated the above consignment under section 156
(1) of the Customs Act, 1969, but gave an option to the petitioners under section 181 of the Customs Act, 1969 to get the above con--signment released on payment of Rs. 2 lacs. The petitioners being aggrieved by the above order filed an appeal before the Collector of Customs, which was dismissed by an order dated 19th April, 1980. The petitioners being aggrieved by the above two orders filed a revision, which was dismissed by the Board of Revenue with the modification that the amount of penalty was reduced from Rs. 2 lacs to Rs. 25,000. The petitioners being aggrieved by the above three orders have filed the present petitions.
(b) 1208/80.---The facts of the above petition are more or less identical with the aforesaid Petition No. 1149/80 inasmuch as the petitioners imported the above item, namely, "Ginton Genseng tonic" under an import licence issued for homeopathic and biochemic medicine under item 30.03. When the consignment in question arrived at the port of Karachi, the petitioners were served with a show-cause notice dated 28-10-1979, to show cause as to why the goods should not be confiscated for contravention of section 16 of the Customs Act, 1969, read with section 3 (1) of I & E Control Act, 1950. In response to the above show-cause notice the petitioners filed objections.
3. However, the Deputy Collector Customs through his order dated.24-3-1980 confiscated the goods but gave option to the petitioners to get the above consignment released on payment of Rs. 96,376 as the penalty. The petitioners being aggrieved by the above order filed an appeal before the Collector of Customs, which was dismissed by an order dated 28th May, 1980. The petitioners being aggrieved by the above 2 orders filed a revision which was also dismissed by the Board of Revenue with the modification that the amount of penalty was reduced to Rs. 23,620 in place of Rs. 86,376.
4. The petitioners being aggrieved by above three orders has filed the present petition.
2. (a) In support of the above two petitions Mr. Khadimali Khan, learned counsel for the petitioners has made the following submissions
(i) That the item in question had been imported by the various importers during the last several years under Item 30.03 and that the goods had been released without recovery of any customs duty etc. Being on free list and, therefore, the impugned orders are illegal and without jurisdiction.
(ii) That there has been discrimination inasmuch as in one of the cases the goods were released by the Deputy Collector of Customs on administering warning without levying any penalty or custom duty.
5. On the other hand, Mr. Aziz Munshi, learned Deputy Attorney-General has urged the following submissions :
(i) That the item in question falls under item 13.03 and, therefore, was wrongly imported under item 30.03.
(ii) That the mistake committed in the past by department cannot constitute estoppel against the department as to debar the depart--ment froth rectifying the above mistake.
(b) In order to appreciate the respective contentions of the learned counsel for the parties, it may be advantageous to reproduce hereinbelow items 30.03 and 13.03, which read as follows : -- "30.03 Medicaments (including veterinary medicaments) : I.Medicated wines.
6. II. Ayurvedic and Unani medicaments."
7. "13.03 Vegetable saps and extracts ; pectic substances, pectinates and pectates ; agar-agar and other mucilages and thickners, derived from vegetable products I. Opium.
8. II. Agar agar.
9. III. Of a kine lone used primarily in pharmacy.
10. IV. Other."
11. In may be noticed that item 30.03 includes homeopathic and biochemic medicaments, whereas item 13.03 includes vegetable saps and extracts of pectic substance, pectinates and pectic agar- agar and other mucilage and thickners drawn from vegetable products (1) Opium, (2) Agar Agar,
(3) a kind used primarily in pharmacy (4) others.
(c) Mr. Aziz Munshi, learned Deputy Attorney-General has also referred to item 13:03 given in Brussles nomenclatures, which defines as follows : "Ginseng extract, obtained by water or alcohol extraction of ginseng root, put up in a retail packing with indications of the recommended dosage and use as a nourishing tonic, for loss of appetite, general weakness, weakness after disease and recovery from fatigue."
12. It may be pertinent to mention that the description of item 13.03 given in the Import Policy is different from the description given in Brussels nomenclatures.
(d) From the impugned orders, it is evident that the item in question had been imported in the past under item 30.03 without charging of any custom duty. But when the consignments in question arrived there was lot of confusion obtaining in the department. It may be pertinent to observe that in the impugned orders, which are the subject-matters of Petition No. 1149/80, the Deputy Collector proceeded on the assumption that the item in question was banned item in view of the classification dated 13-9-1978 issued by Import and Export Authorities. Whereas the Collector proceeded on the basis that under notification dated 22-10-1979 this item has been classified as a drug. Whereas the CBR admitted the factum that the Ministry of Health in their letter dated 19-12- 1977 after having examined the samples of Korean Ginseng product confirmed that it was homoe (biochemic) preparations. It was also admitted by the CBR that while examining similar medicine named. Royal Bee Jelly, which was imported from China against licence for Homeopathic and Biochemic medicine, the Deputy Collector had taken a lenient view under similar circumstances and allowed its release on warning. On the above basis the amount of penalty was reduced from Rs. 2 lacs to Rs. 25,000. Since the custom department itself was not clear as to the classification of the above item, the respondent department should have made reference to the competent authority under the Import and Export Act, 1950 for classifica--tion of the item in question instead of taking inconsistent pleas. We therefore, set aside the impugned orders in both the above writs petition and. Direct respondent No. 1 to make a reference to the authority concern--ed under the Imports and Exports Act, for the classification of the above item. We further direct that the petitioner's case after obtaining the above classification should be disposed of within 45 days.
13. Since the above Petitions have been disposed of, the amounts, of penalties deposited by the Petitioners with this Court should be refunded to them. In the circumstances of the case there would be no order as to costs.