' AIMAL MIAN, J.--The petitioner in this petition have prayed for the following reliefs :- "(i) It may be declared that the levy of Customs Duty on landing charges in respect of the consignments referred to in the petition is illegal and is without lawful authority being against provisions of law.
(ii) The levy of excess duty on the basis of wrong rate of exchange being against provision of section 30 of the Act is illegal and is without lawful authority.
(iii) The petitioners also claim cost of the proceedings,"
2. The relevant facts leading to the filing of the above petition are that the petitioner acting as clearing agent got a number of consignments cleared in 1972 on behalf of Messrs Printing Corporation of Pakistan Limited and Messrs Services Corporation of Pakistan Limited. It further seems that in 1974 as many as 12 notices (Annexures A to L to the petition) were issued to the petitioner stating therein that there was short recovery of the custom duty as the landing charges were not included in the value of the goods while assessing the custom duty. It also seems that the above notices were replied to by the petitioner and it was contended that factually no landing charges were paid and, therefore, there was no short recovery of the custom duty. In reply to the above stand taken by the petitioner in their letter dated 30th January, 1974 the respondent department through its letter dated 22nd April, 1974 stated that irrespective of the fact, whether any landing charges were paid or not, the landing charges at the rate of one per cent. Should have been added to the value of the goods for assessing the custom duty.
' It may also be mentioned that the petitioners were also served with two notices (Annexures M and N to the petition) in 1974, in which it was alleged that the valuation of the goods was calculated on the basis of the incorrect rate of exchange namely, Rs, 27.18 per sterling pound instead of Rs, 28.56, Rs, 83.88. It was the case of the petitioner that the valuation of the goods was calculated on the basis of correct rate of exchange and, therefore, no mistake was committed. When the petitioners were pressed to comply with the above notices, the petitioners filed the present petition.
3. (a). In support of the above petition Mr. Obaidur Rehman has made following submissions -- "(1) That in pare 8.27 of the General Manual of the Custom and Tariff Law, no landing charges can be added to the value of the goods unless they are factually paid.
(ii) That in any case the demand for the short recovery could have been raised within four months in terms of section 32 (3) of the Customs Act, 1969.
' As regards the second controversy as to the rate of foreign exchange, Mr. Obaidur Rehman has relied upon Annexure '0' to the petition, which indicates that the rate of sterling pound on the relevant day was the same on the basis of which the value of the goods was calculated.
(b) On the other hand Mr. Shakir, learned counsel for the respondent has advanced the following contentions :-
(1) That since the petitioner had factually paid the landing charges the respondent department was entitled to add the same in the value of the goods at the rate of one per cent. In terms of above para. 8.27.
' In support of the above contention he has referred to para. 4 of the counter-affidavit.
(ii) That since there was mis-statement as to the facts of nonpayment of the landing charges section 32(2) of the Customs Act, 1969 was applicable, which provided a period of three years.
' As regards the dispute as to the rate of exchange he has submitted that the department was unable to obtain an authentic document to indicate what was the rate of exchange on the relevant date.
4. After having heard the learned counsel for the parties, we are of the view that under para. 8.27 of the General Manual of Custom and Tarrif law one per cent. Flat rate for the landing charges can be added to the value of the goods in case a consignee factually pays same landing, charges, which may not be ascertainable. Since there is an averment in the respondent's counter-affidavit to the petition that factually the petitioner had paid landing charges, it has become a disputed question of fact.
5. The learned counsel for the parties has candidly submitted that it is a fit case, which should be remanded to the Customs Department. We would, therefore, by consent of the learned counsel for the parties remand the case to the Customs Department with the direction that the Collector of Customs will assign the above cases to an Assistant Collector of Customs (Appraisement) for adjudication. The parties will be at liberty to adduce evidence to prove or disprove whether factually any landing charges were paid or not. They will also be free to adduce evidence as to the rate of exchange on the relevant date.
6. The petition stands disposed of in the above terms with no order as to costs.