ASIM HAFEEZ, J.---Petitioner through instant petition, inter alia seeks declaration for reinforcing decisions of the Customs Appellate Tribunal, dated 24.03.2022 and 09.09.2022, in terms whereof allegedly the imported goods - "Aluminum Plates White with Black" -- were classified as falling under PCT Heading No.7606.9190, as claimed by the petitioner. Main grievance of the petitioner is that assessm ent order, passed in exercise of powers under section 80 of the Customs Act, 1969 (Act, 1969), was contrary to referred decisions of the Tribunal. Additionally, petitioner seeks release of consignment / goods under section 81 of the Act, 1969 against provisional assessment of duties / taxes.
2. Petitioner claimed to be a regular importer of Aluminum Plates White with Black - goods. In brief, petitioners' case is that previously identical goods were imported, whereafter disputes arose regarding classification of the goods and quantum of duties / taxes payable, which disputes eventually were adjudicated by Customs Appellate Tribunal, which declared that goods fall within PCT Heading No.7606.9190, and said declaration holds field by the time another consignment of identical goods were imported and declaration submitted. Learned counsel submits that since question of classification of the goods was settled, in terms of the decisions of the Tribunal, and subsequently imported goods were of similar nature, therefore, there was no occasion to re-assess the goods under section 80 of the Act, 1969, by disagreeing with the declaration submitted by the petitioner, whereby goods were classified according to the decisions of the Tribunal. Adds that if there is any occasion to differ / disagree with the declaration submitted, mechanism was provided under section 81 of Act, 1969, which is attracted and officer is obligated to order provisional release of the goods, which obligation is enforceable as a right, by the importer. Reliance is placed on the decision in case of SUS Motors (Pvt.) Ltd., Karachi v. Federation of Pakistan through Secretary Revenue Division/Chairman. Islamabad and 2 others (2011 P7D 235) - paragraphs Nos.7 and 8 of the judgment were read. Further submits that it is absurd to conceive that every consignment imported would be reassessed under section 80 of Act, 1969 and upon passing of assessment order, petitioner would be asked to avail remedy of appeal. Adds that goods imported are required to be classified in accordance with the decisions of the Tribunal. Submits that, in wake of facts of the case, remedy of appeal is neither adequate nor efficacious, and instead constitutional jurisdiction is an apt remedy. Referred the case of Collector of Customs, Customs House, Lahore and 3 others v: Messrs S.M. Ahmad & Company (Pvt.) Limited, Islamabad (1999 SCMR 138).
Further submits that Officer of Customs are obligated to follow the ratio of decisions of the Customs Appellate Tribunal in terms of rule of Resjudicata. Learned counsel has placed reliance on the decisions reported as Commissioner of Income-Tax, Central Zone 'B' v. M/s Farrokh Chemicals Industries (1992 PTD 523), The Commissioner of Income-Tax, Lahore v. Messrs Lucky Stores and Zubair Medical, Stores, Lahore Cantt (1981 SCMR 656), Commissioner of Income- Tax, East Pakistan, Dacca v. Wahiduzzaman (PLD 1965 SC 171), Messrs Assam-Bengal Cement Co. Ltd. v. The Commissioner of Income Tax, East Pakistan, Dacca (PLD 1962 SC 295) and Karachi Properties Investment Company (Pvt.) Limited, Karachi v. Income-Tax Appellate Tribunal. Karachi and another (2004 PTD 948).
3. Learned counsel for the department objects to the maintainability of petition in the wake of availability of alternative remedy under section 193 of Act, 1969, against the assessment order passed under section 80 of the Act, 1969. Adds that goods declaration submitted under section 79 of the Act, 1969 was checked, goods were examined and reassessed accordingly. In this case goods were examined and assessm ent order was passed under section 80 of Act, 1969. Submits that petitioner submitted application for review of the order, while relying on the decisions of the Tribunal, and applications were dismissed, whereby order of the Tribunal was distinguished in the context of the observations recorded. Adds that once goods are reassessed, there was no reason to invoke the mechanism provided under section 81 of the Act, 1969. Learned counsel referred following decisions, reported as Collector of Customs and another v. Messrs Fatima Enterprises Ltd. and others (2012 SCMR 416), Collector of Customs and others v. Universal Gateway Trading Corporation and another (2005 SCMR 37), Province of Punjab through Secretary Communication and Works Department, Lahore through Chief Engineer (North/Central) Punjab Highway Department, Lahore (2021 SCMR 624) and unreported judgment of this Court passed in W.P.No.57607/2022 titled M/s Al-Ghani Chain Industries (Pvt.) Ltd. v. Federation of Pakistan and others.
4. Submissions heard.
5. Primary grievance is that the goods, subject matter of decisions of Tribunal, and goods declared through goods declaration, lately submitted, are identical in all respects, therefore, they must be assessed as per the classification determined by the Tribunal. Learned counsel emphasized that assessm ent order is void, being contrary to the decisions of the Tribunal, and this error can be reviewed in exercise of judicial review jurisdiction.
6. It is not disputed that petitioner has sought review of the assessment order and said application was dismissed. The observations recorded therein are relevant, which are reproduce hereunder for ease of reference, same read as, Officer RuleEntry Remarks Assessm ent Officer (AO)16/09/2022As per and identical data of the same importer vide GD LAPR- HC-2228- 09-09-2022] DV IS FAIR, WIEHGT REPORTED IS 4276 KGS PCT CHANGED TO 7616.9990 Principal Appraiser (PA)16/09/2022AS PROPOSED IN THE LIGHT OF PREVIOUS EVIDENTIAL RECORD AC/DC Assessm ent16/09/2022Review filed by the importer has been examined at length. Assessment is made in terms of ER WeBoc images uploaded and explanatory notes of Vehicle Number Plates that are correctly classifiable under HS Code 8310 but the explanatory notes excludes (Exclusion a) such plates which do not bear any numbers, letter number or design, or bearing only particulars incidental to essential information which is to be added later. Such plates are correctly classifiable on the basis of constituent material under HS Code 76.16, 73.26,79.17 etc. Perusal of images uploaded in WeBoc shows that that the impugned goods do not bear any number or letter and the design printed is only incidental to essential information. As such the impugned goods are correctly classifiable under PCT Heading 7616.9990. The importers contention that the imported goods are correctly classifiable under is 7606 is not tenable as the subject heading is only for plates, sheets or strip which are used as raw material and not articles while the instant goods are ready to use articles. Lastly the importer has uploaded judgment of Customs Appellate Tribunal wherein it has been held that the goods in question are classifiable under HS Code 7606.
Judgment of the CAT has been perused and information was sought from the concerned Collectorate. It transpires that the said judgment has been challenged by the Department before Honorable Sindh High Court, Karachi by filing SCRA 362/2022 as such the said matter has not attained finality. Furthermore, previous evidential data of the same importer was also scrutinized which reveals that in 7 previous instances the importer has gotten his consignments cleared under HS Code 7616.9990 and in case of GD No. LAPR-HC-6681 dated 17.11.2021, LAPR-HC-6680 dated 17.11.2021 and LAPR-HC-5684-29-10-2021 wherein the importer has himself declared the instant goods under PCT 7616.9990 and got them cleared under the same PCT Heading after payment of leviable Duty and Taxes. In view of above the instant review is regretted.
7. In the light of the observations recorded, this court is not inclined to assume and exercise constitutional jurisdiction. The scope of merits review and judicial review is different. Assessment order, passed under section 80 of Act, 1969, on its merits, could be challenged by invoking remedy of appeal under section 193 of the Act, 1969. In the context of remedy of judicial review sought, it is evident that subsection (3) of section 80 of Act, 1969 confers jurisdiction on the officer of Customs to reassess duties, taxes and charges, while checking the goods declarations, without prejudice to any other action to be taken under the Act. No illegality is found qua exercise of jurisdiction, whereby goods were assessed. Claim of proximity of the goods for the purposes of classification and assessm ent of duties, in the context of earlier decisions of the Tribunal, is another matter, which involves the merits of the case and determination thereof require factual analysis. In the wake of observations recorded while dismissing application for review, this Court refrains from commenting on the factual issues. Learned counsel failed to convince this court regarding application of section 81 of Act, 1969 to this case, when goods were already re-assessed under section 80 of Act, 1959. Sections 80 and 81 are mutually exclusive, which caters for different situations / scenarios -- which cannot be applied or invoked at the same time. Section 81 of Act, 1969 could be invoked, in case assessment could not be made by the officer of Customs under section 80 of Act, 1969, in which circumstances section 81 comes into play and importer could claim that goods be released against provisional assessment. For clarity subsection (1) of section 81 of the Act, 1969, is reproduced hereunder:- "81. Provisional determination of liability.---(1) Where it is not possible for an officer of Customs during the checking of the goods declaration to satisfy himself of the correctness of the assessment of the goods made under section 79, for reasons that the goods require chemical or other test or a further inquiry, an officer, not below the rank of Assistant Collector of Customs, may order that the duty, taxes and other charges payable on such goods, be determined provisionally.
Provided that the importer, save in the case of goods entered for warehousing, pays such additional amount on the basis of provisional assessment or furnishes hank guarantee 5afor pay order] or a post-dated cheque of a scheduled bank along with an indemnity bond for the payment thereof as the said officer deems sufficient to meet the likely differential between the final determination of duty over the amount determined provisionally: Provided further that there shall be no provisional assessment under this section if no differential amount of duty and tax is paid or secured against bank guarantee or post-dated cheque."
Distinguishably, in this case the goods were reassessed under section 80 of Act, 1969, hence, no question of invoking powers under section 81 of the Act, 1969 arises. Once, the mechanism provided under section 81 of Act, 1969 was not resorted to by the officer of Customs, no question of provisional and final determination arises, upon lapse of time period provided under section 81 of the Act, 1969. The judgment referred in the case of SUS Motors (Pvt.) Ltd., Karachi (supra) is not attracted to the facts of instant case, which is distinguishable, as evident from perusal of paragraph No. 7 thereof, which is reproduced herein for illustrative purpose, "The goods declaration for the consignment imported in the Rehan Umar case was filed on 24-10- 2005, and it was therefore the substituted section 81 that applied. It appears that the value declared by the importer was not accepted by the Department, and he was asked to deposit an additional amount by way of duty payable. The Importer thereupon asked that provisionally released under section 81. He was however informed that his goods had already been assessed on the basis of a valuation advice, and his request for provisional release under section 81 was turned down. It was in these circumstances that the petitioner filed a petition before this Court.
The Division Bench seized of the matter framed four questions that required determination, and it is only the third question that is presently relevant. This was framed in the following terms:-- "If the declared value in Bill of Entry/Goods Declaration is not acceptable to the appropriate officer and he is of the view that customs value cannot be determined under the provisions of subsection
(1) of section 25 and resort is to be made to the methods provided in subsections (5), (6), (7), (8) or (9) and for that purpose further inquiry is required, an importer is entitled for release of goods under section 81 of the Customs Act, by provisional determination of liability, as a matter of right and not as a matter of concession within the discretion of the appropriate officer of the customs?"
(pg. 923).
It will be seen that the question is narrowly focused. In essence, the question is whether, if the declared value is not accepted by the appropriate officer, the importer is entitled as of right to have recourse to section 81 and not merely as a matter of concession and at the discretion of the said officer. It was to answer this question that section 81 was considered. The Court examined in detail its various provisions, and also referred to the explanation. It then answered the question posed in the following terms:- "It is therefore, held that if the declared value in the Bill of Entry/goods declaration is not acceptable to the appropriate officer of the customs department and the value cannot be determined under the provisions of subsection (1) of section 25 and resort is to be made to the other methods provided in section 25 of the Customs Act, then the importer is entitled for the release of goods under section 81 of the Customs. Act, by provisional determination of the liability. The release of goods in such manner is a matter of right of importer and not a matter of concession within the discretion of appropriate officer of the customs" (pg 950).
In our view, it is quite clear that the question that falls for determination in the present case was not in issue in the Rehan Umar case and in particular, did not fall within the ambit of the third question with reference to which section 81 was analyzed and interpreted. The reason is simple. In the present case, the question raised is post-provisional determination-how and in what manner does the provisional determination become the final determination on lapse of the stipulated period?
The question posed and answered in Rehan Umar is pre-provisional determination-is an importer entitled as of right to have section 81 applied to his case if the is a valuation dispute? It is the answer to this question, and this question alone, which is the ratio decidendi of the decision (as presently relevant) and binding on subsequent Division Benches. Any other finding is only in the nature of an obiter dictum, which does not have binding effect. This is a well settled principle, and reference may be made to Irshad Ahmad Shaikh v. The State 2000 SCMR 814, where it was observed as follows: "Now, every case is an authority, to the extent the same decides the legal controversy encompassed in it. In other words, the declaration of law has to be confined to the four corners of the dispute agitated before the Court. The rest, if any, is obiter and obiter, except of this Court or, before it, of the Privy Council is not/has not been binding." (pg. 822)
Accordingly, we are of the view that any observations made by the learned Division Bench in the Rehan Umar case with regard to the interpretation of section 81 once it has been applied, and goods are released in terms thereof, are only dicta and do not constitute binding authority. In the present context, we would also note in passing that the learned Judge (Mujeebullah Siddiqui, J.) who was the author of the decision in the Rehan Umar case was also party to, and author of the decision in, another Division Bench case reported as Khairpur Textile Mills Ltd. and others v.
National Bank of Pakistan and another 2003 CLD 326. The Division Bench examined in detail the rules applicable to precedents, and in the course of the judgment observed as follows:-- "...the law of precedent is a delicate one and before following a decision it is necessary to see as to what were the facts of the case in which the decision was given and what was the point which was to be decided. Too rigid observations to the precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. As it has been very aptly observed by Sir Henry Slessar, in his classical book 'The Art of Judgment', that the good Judges and lawyers should never be slave of the precedent, the precedent should be a guide and not a dictator." (para 39, pg 346)
We therefore now turn to consider the important questions of interpretation raised in the present petition with regard to section 81 and other applicable provisions."
(Emphasis supplied)
8. In the referred case, question of interpretation of section 81 of Act, 1969 arises, when duties/taxes were not assessed under section 80 of Act, 1969. Whether rule of res judicata is attracted or not?
This question can competently be determined by the appellate forum. It is not apt for this court to review the observations made while dismissing review application. Submissions that petitioner could claim benefit of provisional release of goods as right in terms of section 81 of the Act, 1969, is misconceived. This court cannot ignore the mandate envisaged and provided under section 80 of Act, 1969, which has been exercised in this case, and order provisional release of goods under section 81 of the Act, 1969. Judgments otherwise referred by learned counsel for the petitioner are distinguishable on facts, which are not attracted to the facts of the case. The facts of the case of Messrs S.M. Ahmad & Company (Pvt.) Limited, Islamabad (supra) are distinguishable, and in said case it was established that remedy of appeal, in view of facts of the case, was illusionary. No such conclusion could be drawn in the case at hand. To question the merits of assessment order, remedy of appeal is available, which is otherwise an adequate, efficacious and appropriate remedy in wake of the facts of the case. Guidance is solicited from the ratio settled in the case of Khalid Mehmood v. Collector of Customs, Customs House, Lahore (1999 SCM R 1881), wherein non- interference through exercise of constitutional jurisdiction was endorsed when alternate remedies are available and constitutional courts are declared as repositories of ultimate appellate, revisional or referral dispensation -- in the context of fiscal statutes.
9. This constitutional petition being devoid of merits is, hereby, dismissed. No order for the costs.