1. AJMAL MIAN, J.-In this petition the petitioners have prayed for the following reliefs :- "(a) declare that the impugned action of the respondents is arbitrary, unjust, unreasonable, too harsh, mala fide, colourable exercise of jursidiction and is without lawful authority ;
(b) direct the respondents to release the goods, issue and/or honour delay and Detention Certificate ;
(c) grant any other relief deemed fit in the circumstances of the case ;
(d) grant compensatory costs."
2. The brief facts leading to the filing of the above petition are that the petitioners were granted import licences Nos. A-395062, and A-376815 on 16-7-1979 and 24-7-1979 by the Chief Controller of Imports and Exports, Government of Pakistan for the import of chemicals according to the aver-- ment in the petition as shown at serial No. 55 of the free list under the Impor 1 Policy Order, 1979. The petitioners imported the following items against the above two import licences
(i) Brobat Bloo Blocks 238 dozens worth Rs. 22,327.
3. (i.e) Sanilav 80 dozens worth Rs. 9,113.
4. However, it seems that after the consignment in question arrived at the Karachi Port, the petitioner filed the necessary documents for the clearance, of the above consignment with the Customs Authorities. But the latter raised an objection to the effect that the items were banned under item.
5. No. 34.02 of the I. T. C. Schedule. It further seems that a show-cause notice was issued. Thereafter, the Deputy Collector Customs passed the impugned order dated 28-2-1980 ordering confiscation of the goods and imposition of -personal penalty of Rs. 20,000 It is the case of the petitioners that they had filed an appeal before respondent No. 1, but the same remained pending and therefore, the petitioners have to file the present petition. The latter averment has not been refuted by the respondents.
2. It has also been averred that during the pendency of the case before the Deputy Collector Customs, the case was referred to the Chemical Examiner, to the Government of Pakistan, who by his 3 reports all dated 3-1-1980 (Annex. I to K to the petition) opined as follows
(i) Brobat Blocks (Lavatory Cleaner)
6. The sample may be seen. It is put up in retail sale packing, in the form of cake. It is found to be a preparation consisting of surfactant, soluble was slyco, mineral filler, form addely colouring matter and fine oil as perfume. It is stated to be used as lavatory cleaner as well as a mild permiside."
7. The same is a cleaning preparation based on Ammonia consisting of Ammonia in association with unidentified compound in which one is suspended in the medium. It is in the form of aqueous solution. It is stated to be used as general purpose household cleaner and specially effective for removing grease. It is put up in retail sale packing.
8. (i.e) Sanlav (Disinfactant)
9. The sample is a preparation based on said and alkali carbonate in the form of powder. It is found to be perfumed. It is stated to be used as lavatory clearner. It is put up in retail sale packing."
10. It also seems that during the pendency of the present petition the respondents had made a reference to the Brussel's Council for classification of the above 3 items. According to the opinion contained in the Council's letter dated 30-7-1981 (the copy of which has been produced by respondents Nos. 1 & 2) the above items fall within the classification of item No. 34.02 of the I. T. C.
11. Schedule. It may be advantageous to reproduce herein below the relevant portion of the above report and item No. 34.02, which reads as follows "(i) On the basis of the submitted information headings 34.01, 34.02 and 38.11 should be taken into consideration. However, since the product appears .To be more specifically described as a general cleansing preparation and thus would have only subsidiary disinfecting properties, classification heading 38.11 as a disinfectant must fist be ruled out.
12. As regards the choice between headings 34.01 and 34.02, it is noted that heading 34.01 covers both soap and organic surface-active products and preparations for use as soap in the form of, e. g., cakes. Explana--tory Notes 34.01., Part I, page. 503, last paragraph, indicates that soaps of this heading are of a kind generally used for washing the hands or face. In addition, this Explanatory Note states that the washing products and preparations of the heading are intended for the same uses as soaps (see page 503) Part II, first paragraph. Since "Brobat Bloo" is described as being intended for use as a lavatory cleaner and thus would appear to be inappropriate for washing the hands or face, it should not be classified in heading 34.01 as a soap or as a surface active preparation for use as soap. Given that heading 34.02 covers washing preparations which include preparations for cleaning various surfaces (floors, etc.), I am of the opinion that this product should be classified in heading 34:02 (see Explanatory Note 34.02, page 504 b, lust paragraph).
13. "34.02.-Organic surface-active agents surface-active preparations and wash--ing preparations, whether or not containing soap : , I. Organic surface-active agents/preparations
1. Sulphonated oil.
2. Others. .
14. II. Washing preparations: It may be noticed that according to the Chemical Examiner above-quoted report, items Nos. 1 and 3 are lavatory cleaners, whereas item No. 2 has been described as a cleaner preparation generally used for household. Purposes as cleaner.
15. It may also be noticed that item No. 34:02 has been categorized into two categories, namely, I and 11, whereas I includes Organic surface-active product and preparation (1) Sulpbanated oil (2) others whereas (II) includes washing preparations. Both the learned counsel have referred to the Import Policy Order, 1979 particularly item No. 55 which inter alia provides item No. 34.02 (1) and (2) as the item permissible for imports under the free list. A plain reading of the item 34.02 I (1) and (2) of the I. T. C. Schedule and Item No. 55 of the Import Policy Order, 1979 read with the Chemical Examiner's reports and the Brussels Council's report referred to hereinabove indicate that in any case the 3 items in question fall within the item No. 34.0 (1) and (2) of the I. T. C. Schedule and, therefore, could have been legally imported against the import licences referred to hereinabove.
16. The Deputy Collector has committed an error in holding that the above items were banned items by classifying the same under item No. 34.02 II i.e. The washing preparations.
3. For the aforesaid reasons we allow the petition and declare the impugned order as without lawful authority and of no legal effect. Respon--dents Nos. 1 and 2 are directed to release the goods after receiving the normal custom and other charges. There will be no order as to costs.