1. This judgment will dispose of four suits, namely, Suits 190 of 1970, 191 of 1970, 192 of 1970 and 193 of 1970. The brief facts and allegations set out in the plaints are common to all these suits and may be stated as follows : In all the four suits the plaintiffs imported betel nuts on bonus vouchers under the Export Bonus Scheme. Upon their arrival at Karachi, these goods were detained by the Collector of Customs, who is defendant No,
1. Show-cause notices were issued to the plaintiffs in each case for explanation as to why their goods should not be confiscated. According to the plaintiffs, they duly sent replies to these notices, but that the goods continued to be detained by the Customs Authorities. The plaints in the suit contain allegations that the action to detain the goods was taken with mala fide intention and at the intervention of the Central Board of Revenue and the Trading Corporation of Pakistan Limited. The written statements in the suits are in identical terms. The defendants have denied the allegations and have taken the contention that the goods were imported against the terms of the import licenses issued to the plaintiffs and in breach of the relevant Import Policy Orders and I. T. C. Schedule. In additional, it was also stated that after receiving the replies of the plaintiffs to the show-cause notices, the plaintiffs' cases were duly adjudicated upon, which adjudications resulted in orders for confiscation of the goods and for imposition of personal penalties on the plaintiffs and that therefore the suits had become infructuous and, further, that the suits were not competent as the plaintiffs' proper remedy was by way of appeals and revisions under the Sea Customs Act. On these pleadings the following common issues were framed by the Court in all the four suits : (1)Whether this Court has jurisdiction to entertain the suit?
2. (2)Whether the suit is barred by the provisions of Sea Customs Act ?
3. (3)Whether the plaintiffs could import betel nuts under the import licence issued for Items Nos, 9/5, 12/7 and 13/3 (ii) of the I. T. C. Schedule ?
4. (4)Whether the suit has become infructuous?
5. (5)Whether the defendants' action is mala fide, suffers from bias or is otherwise illegal?
6. (6)To what relief if any the plaintiff is entitled to?
7. No oral evidence was led by either sides. The parties rested their case on documentary evidence, which, by consent, was brought on record as follows : (1)Import licence in Suit No, 190 of 1970--Exh. 5.
8. (2)Reply dated 18th December 1969 by the plaintiff in Suit No, 191 of 1970 to the show-cause notice issued by the Collector of Customs--Exh. 6.
9. (3)Order of adjudication by the Collector of Customs dated 16-2-1970--Exh. 7.
10. (4)Show-cause notice issued by the Collector of CustomsExh. 8.
11. (5)Bill of lading showing the consignment to be of medicinal herbs and crude drugs (betel nuts)
12. Exh. 9.
13. (6)Invoice of the suppliers containing the above description of goods--Exh. 10.
14. (7)Letter of credit dated 16th October 1969 opened by the Muslim Commercial Bank Limited for goods described as medicinal herbs and crude drugs--Exh. 11.
15. (8)Bill of entry describing the goods as medicinal herbs and crude drugs--Exh. 12.
16. Since the documents in each suit were of the same kind and in identical terms, it was agreed at the Bar that all the four suits should be decided with reference to the above exhibits.
2. Coming now to the issues, I would first take up Issue No, 5, under which the question to be decided is whether the defendants' action complained against in the plaints is maid fide. In this respect, the contention of Mr. Naseem Farooqi is that the action of the Collector of Customs in each of the four suits was taken on the intervention of the Trading Corporation of Pakistan Limited, who claimed to have the monopoly of imports of betel nuts. The Trading Corporation of Pakistan Limited is alleged to have moved the Central Board of Revenue against import of betel nuts by private parties under Export Bonus Scheme, and that the Central Board of Revenue, according to the plaintiffs, instructed the Collector of Customs to confiscate the goods instead of releasing the goods on recovery of penalties, which practice had hitherto been followed by the Customs Authorities. But no evidence was led on these facts. It was not proved that the Trading Corporation of Pakistan Limited at all moved in any of these cases or that the Central Board of Revenue gave any instructions to the Customs Authorities as to how they should deal with the import of betel nuts. Further, neither the Trading Corporation of Pakistan Limited nor the Central Board of Revenue has been made defendants in the suit. Each of the four suits is directed against only two defendants, namely, (1) Collector of Customs, and (2) Pakistan through Secretary, Ministry of Finance, Government of Pakistan. Since serious allegations were made in the plaints against the Trading Corporation of Pakistan Limited and the Central Board of Revenue, these were at least proper parties, if not necessary parties. As I have noted, the plaintiffs did not lead any evidence on the allegations which they have made against these two parties. Mr. Naseem Farooqui urged that the Central Board of Revenue gave policy directions to the Collector of Customs to confiscate the betel nuts, and that this was wrongful interference with the quasi-judicial functions of the Customs Authorities. Now, the Central Board of Revenue is entrusted with the administrative supervision of the working of the Customs Department. It will be difficult to take the view that in discharge of this duty, the Central Board of Revenue is not competent to issue directions of the nature complained against by Mr. Naseem Farooqui however 1 will refrain from expressing any opinion on the subject, as it is not necessary to decide this point in the suit. I would content myself with taking note of the fact that there is no proof before me that any such direction was at all issued by the Central Board of Revenue to the Collector of Customs or any subordinate officer in the Customs Department.
17. Hence, the plaintiffs' allegations made under this issue have not been proved at all, and this issue is accordingly decided against the plaintiffs.
3. I would now take up issue No,
4. It is to the effect whether the suits have become infructuous. This contention is based on the written statements of the defendants to the effect that each of the plaintiffs' case has already been adjudicated upon by orders of the Collector of Customs, which orders have already been despatched to the plaintiffs, and, therefore, the suits, which complain only against detention of the goods, have become infructuous. Exh. 7, which is the order of adjudication in one case, shows that the case was adjudicated upon by the Collector of Customs on 16th February 1970, and the order was sent to the party concerned on 16th April 1970. Each of the four suits was filed in this Court on 29th April 1970. But none of the plaints stated that the plaintiffs' cases had already been adjudicated upon by the Collector of Customs. In my view, the Collector's orders of adjudication under the Sea Customs Act have made the suits infructuous because no relief has claimed against these orders. Further, the plaintiffs' remedy is by way of appeals and revisions under the provisions of the Sea Customs Act. This position was expressly pointed out to the plaintiffs, who, however, elected to pursue these suits rather than withdraw the same and proceed with the remedies given to them under the Sea Customs Act. I accordingly hold that the suits, since they did not claim the proper remedy, which perhaps should have been to the effect that the orders of adjudication were void or invalid for any reason, were not maintainable only for the relief of declaration that the detention of goods was wrongful. The plaintiffs should have sought some relief against the orders of adjudication also. The reliefs claimed in the present suits cannot be given unless it is held that these orders of adjudication were wrongfully made, but, as I have stated, no relief has been claimed in the plaints with regard to these orders. It is accordingly held that the suits become infructuous as soon as the Collector of Customs made orders of adjudication confiscating the goods and imposing personal penalties on the plaintiffs.
4. Issues 1 and 2, raise the question of jurisdiction of the Court and non-maintainability of the suits under the provisions of the Sea Customs Act. Actually no arguments were addressed to me in this connection. Perhaps these issues were raised on the defendants' contentions that the plaintiffs should first have availed themselves of the remedy of appeals and revisions provided for under the Sea Customs Act against order of adjudication made by the Collector of Customs. But under Issue No, 4, I have already held that the suits were infructuous, as the Collector of Customs had already passed orders confiscating the goods and imposing personal penalties upon the plaintiffs. Since no arguments were addressed to me on Issues 1 and 2, I treat them as having been dropped.
5. The main issue is issue No, 3, which raises the question whether the plaintiffs could Import betel nuts under Import licenses for items 9/5, 12/7 and 13/3 (ii) of the I. T. C. Schedule. This Schedule was issued by the Central Government under section 3 of the Imports and Exports (Control) Act, 1950 (XXXIX of 1950) and took effect as from 1st January 1969. The Schedule revised the classifications of the various goods for purposes of imports on the lines of the Pakistan Customs Tariff. Item 9/5 of the Schedule relates to seeds of anise, badian, fennel, coriander, cumin, car way and juniper. Item 12/7 of the Schedule relates to plants and parts (including seeds and fruit) of trees, bushes, shrubs or other plants, being goods of a kind used primarily in perfumery, in pharmacy or for insecticidal, fungloidal or similar purposes, fresh or dried, whole, cut, crushed, ground or powdered. Item 13/3 reads as follows :- "Vegetable saps and extracts, pectin substances, pectinates and pectates agaragar and other mucilages and thicknors, derived from vegetable products."
18. Here item 14/5 may also be noted. It reads as follows :- "Vegetable products, not elsewhere specified or included.
19. (i)Tendu leaves (Biri leaves).
20. (ii)Betel nuts.
21. (iii)Others.
22. The plaintiffs' however, placed reliance on the Pakistan Customs Tariff (1st July 1968 to 30th June 1969 which contains classification of goods for tariff and custom purposes. Now, Item 9/5 of the I.
23. T. C. Schedule is shown in the Schedule to correspond to item 09.09 of the Pakistan Customs Tariff, which latter item reads as follows :- "Seeds of anise, badian, fennel, coriander, cumin, carway and juniper."
24. Item 12/7 of the I. T. C. Schedule is shown therein to correspond to item 12.07 of the Pakistan Customs Tariff, which reads as follows :- "Plants and parts (including seeds and fruit) of trees, bushes, shrubs or other plants, being goods of a kind used primarily in perfumery, in pharmacy, or for insecticidal, fungicidal or similar purposes, fresh or dried, whole, "cut, crushed, ground or powdered.
25. "A. Goods of a kind used primarily in perfumery.
26. B. Cinchons bark.
27. C. Betel Nuts.
28. D. Other."
29. Item 13/3 in the I. T. C. Schedule is shown therein to correspond to Item 13.03, which reads as follows :- "Vegetable saps and extracts ; pectio substances, pectinates and pectates agar-agar and other mucilages and thickners, derived from vegetable products.
30. A. Opium.
31. B. Other."
32. Item 14/5 of the I. T. C. Schedule is shown therein to correspond to item 14.05 of the Pakistan Customs Tariff and is in following terms :- "Vegetable products not elsewhere specified or included.
33. A. Tendu leaves (Biri leaves).
34. B. Other.
35. 'The plaintiffs' argument is that the import of betel nuts is covered by Item 12.07 of the Customs Tariff, the goods whereunder are described as plants and parts of trees, bushes, shrubs and other plants, being goods of a kind used In perfumery, pharmacy and for insecticidal and other like purposes and include betel nuts. The plaintiffs' contention is that this item expressly includes betel nuts and, further, that the item relates to plants and part of trees etc. used in perfumery or pharmacy or such like purposes, and that betel nuts are in fact important ingredients in the preparation of several medicines accepted in all the recognized pharmacologies. Their further argument is that even if Item 12.07 of the Pakistan Customs Tariff was not applicable, then, the import of betel nuts was covered by Item 14.05, which relates to vegetable products not elsewhere specified or included in the Pakistan Customs Tariff. But the plaintiffs overlook the obvious fact that the classification of goods in the Pakistan Customs Tariff is for purposes of levy of Customs duty.
36. On the other hand, classification of goods in the I. T. C. Schedule is for purposes of imports of these goods. The import licenses, according to the plaintiffs' own admission made at the Bar, relate to Items 9/5, 12/7 and 13/3 (ii) of the I. T. C. Schedule. But none of these items, according to the classification given in the 1. T. C. Schedule, cover betel nuts. In the I. T. C. Schedule, betel nuts are expressly covered by Item No, 14/5 (ii) and, for purposes of levy of customs duty, this item is made to correspond to Item No, 14.05 of the Pakistan Customs Tariff which has been reproduced above. It is correct that in the Customs Tariff, Item No, 12.07 includes betel nuts, but then the Customs Tariff was prepared first and came into force before the revision of the I. T. C. Schedule. No doubt this revision was carried out to bring the I. T. C. Schedule in line with the classification of goods under the Pakistan Customs Tariff. But it appears that in doing so, the draftsman committed an obvious mistake in failing to note that Item No, 12.07 in the Customs Tariff makes an express mention of betel nuts. But no serious notice of this error can be taken, as in the revised I. T. C. Schedule the import of betel nuts is permitted only under Item No, 14/5, which item is made to correspond to Item No, 14/05 in the Customs Tariff. For purposes of imports recourse has to be made to the I. T. C.
37. Schedule, and not the Customs Tariff, which merely prescribes that duties leviable on goods imported under the Import Policy orders in force from time to time in accordance with the classifications contained in the I. T. C. Schedule. It was contended that the presence of betel nuts in Item 12.07 of the Customs Tariff created a confusion in the trade, and therefore the plaintiffs should not be treated as having wilfully acted in breach of the Import Policy orders, and accordingly the plaintiffs' imports should not have been made subject to orders of confiscation and imposition of personal penalties. But in my opinion this confusion is self-created confusion. The plaintiffs are presumed to be familiar with the contents of the I. T. C. Schedule, which expressly provides for import of betel nuts under Item 14/5. It was not open to the plaintiffs to take advantage of the error made, when I. T. C. Schedule was being revised, in making Item 12/7 of the Schedule to correspond to Item 12.07 of the Customs Tariff which latter item makes an express mention of betel nuts. It cannot be said that the plaintiffs did not know that for the purposes of import of betel nuts, it is the Import Policy Orders and the I. T. C. Schedule which have to be referred to and that the Customs Tariff in this respect is irrelevant, as its purpose is only to provide for levy of duties on goods validly imported in the country. Now, the import licences in question describe the goods to be imported by reference to the classifications contained in the I. T. C. Schedule, that is, Items 9/5, 12/7 and 13/3
(ii) of the Schedule. Of necessity it has to be held that betel nuts are not covered by these licenses, as this com-modity is expressly mentioned under Item 14/5 of the Schedule. It is possible to take the view that but for Item 14/5 of the 1. T. C. Schedule Items 9/5, 12/7 and 13/3 (ii) would include betel nuts in the generic sense. But as betel nuts are specifically mentioned under Item 14/5, the first three Items of the I. T. C. Schedule, being in general terms, exclude the goods specifically mentioned under the subsequent item, that is, Item 14/5. 'Another point to be taken note of is that the import licenses in question were issued for the period July to December 1969, and the imports for this period were regulated by the Import policy (July-December 1969) Order issued on 30th June 1969, and published in the Gazette of Pakistan, Extraordinary, dated 2nd July 1969. According to paragraph 5 of this Order, item not included in the Free list, licensable list, Cash-cum-Bonus list or in the list of items importable under the export Bonus Scheme shall be treated as ineligible for import unless specifically authorised. Schedule I to this Order contains items of free list. Schedule II to this Order contains the licensable list, item 7 whereof reads in this way: "Medicinal herbs and crude drugs (excluding items 9/5, 12/7, detailed in Annex. XI).13/2 (ii)."
38. These classification numbers are taken, as the licensable list itself shows from the revised I. T. C.
39. Schedule which has been referred to above. Obviously, these classfications do not cover the betel nuts. Annex. XI to this list also makes no reference to the betel nuts. Simultaneously with the above Import Policy Order, the Government of Pakistan published a new schedule for the import of goods under the Export Bouns Scheme, which Schedule was published in the Gazette of Pakistan, Extraordinary, dated 2nd July 1969, and replaced public notice No, 2 (1) 67-FP. dated 20th July 1967.
40. Item 49 of this new Schedule refers to medicinal herbs and crude, drugs, and again these goods are made referable to classification numbers as given in the I. T. C. Schedule, namely, Items 9/5, 12/7 and 13/3 (ii). Therefore, the Export Bonus Scheme also adopts the classification numbers of the I. T. C. Schedule and, as noted above, Items 9/5, 12/7 and 13/3 (ii) of the I. T. C. Schedule do not at all relate to the betel nuts, which have been separately provided for under Item No, 14/6. It is thus clear that import of betel nuts was not at all covered by the schedule of importable goods under the Export Bonus Scheme, nor were the imports of these goods covered by the Free List, Licensable list or the Cash-cum-Bonus List. As noted above, paragraph 5 of the Import Policy (July--December 1969) Order expressly provides that items not included in the Free list, Licensable List, Cash-cum- Bonus list or in the list of items importable under the Export Bonus Scheme shall be treated as ineligible for import unless specifically authorised. Therefore, as far as the plaintiffs are concerned, they could not import betel nuts under any of these lists nor even under the import licenses they obtained, which expressly referred to Items 9/5, 12/7 and 13/3 (ii) of the I. T. C. Schedule, which items do not cover betel nuts at all. As a matter of fact, import of betel nuts is covered by paragraph 11 of the Import Policy (July--December 1969) Order, which gives the list of goods importable exclusively through the Trading Corporation of Pakistan Limited and betel nuts is one of these items. Thus, betel nuts, for the period in question, were importable only through the Trading Corporation of Pakistan Limited under paragraph 11 of the said Import Policy Order. The conclusion from this discussion is that the import licenses obtained by the plaintiffs under the Export Bonus Scheme did not at all relate to or cover betel nuts. They related to medicinal herbs and crude drugs or such items of goods as are mentioned under classifications Nos, 9/5, 12/7 and 13/3 (ii), excluding betel nut which are specifically classified under Item No, 14/5 of the I. T. C. Schedule. Mr. Naseem Farooqi took his stand on a notification dated 8th September 1960 issued by the Chief Controller of Imports and Exports and published in the Gazette of Pakistan, Extraordinary, dated 9th September 1960, which notification stated that the imports under the Export Bonus Scheme did not come under any restrictions imposed on commercial and industrial licenses except for such restrictions as are specifically made applicable to Bonus Licenses. But this notification stood superseded by the Import Policy (July--December 1969) Order and the new Schedule for the import of goods under the Export Bonus Scheme published in the Gazette of Pakistan, Extraordinary, dated 2nd July 1969.
41. The Import Policy Order and this new Schedule Impose specific restrictions on import of betel nuts except through the Trading Corporation of Pakistan Limited which restrictions of necessity excluded import of this commodity under Bonus Licenses. Even if it be held that the notification of 9th September 1960, still stands (which view may be possible), then according to this notification itself imports under the Bonus Licenses were free from restrictions unless any restrictions were specifically made applicable to such licenses. Such restrictions, in fact, came into force through the Import Policy enforced by the Government of Pakistan, for the period July--December 1969. Mr. Naseem Farooqi then contended that the practice of the Customs Authorities had been to release betel nuts by imposing only penalties, and that before these cases, no orders of confiscation of such goods were made by the Collector of Customs. It may be so. But then it would appear that the traders took rather undue advantage of this practice and started imports of betel nuts on very wide scale in complete disregard of the Import Policy Orders and Government notifications in this behalf. In view of such wide spread violations, a point had to be reached when only deterrent penalties could dissuade the traders from acting in breach of the Government's import policies.
42. Perhaps, such stage was reached by the time the present plaintiffs imported betel nuts in complete disregard of the terms of the import licenses granted to them and of the Import Polley Orders and Government's notifications. Thus the clear legal position is that the imports by the plaintiffs of betel nuts under the import licenses in questions were invalid and in violation of the Import Policy and the Government's notifications in this behalf. But Mr. Naseem Farooqi further contended that 1 should not take this view, as for the subsequent import period the Government issued an express public notice to the effect that import of betel nuts was not covered by Item 12/7 of the I. 1'. C. Schedule. According to Mr. Naseem Farooqi this action of the Government would lead support to the plaintiffs' case that there was real and substantial confusion and that the import of betel nuts could not, therefore, be treated as prohibited except under Item 14/5 of the I. T. C.
43. Schedule. But this public notice or clarification of the Government is of no consequence. It was issued, perhaps, "ex major! cautela" and should be treated in the nature of a warning rather than a clarification of the import policy. These being the conclusions, the plaintiffs' grievance against detention of these goods, and even against the orders of confiscation and imposition of personal penalties subsequently made by the Collector of Customs (on which orders the plaints are silent), is ill-conceived and cannot be entertained. Accordingly, Issue No, 3 is decided against the plaintiffs.
6. The last issue is Issue No, 6, which is with regard to the relief available to the plaintiffs. Since I have held above that the plaintiffs could not import betel nuts under the import licenses held by them, no question of grant of any relief arises in those suits. There is no substance in the contentions of the plaintiffs. The Suits accordingly fail and are dismissed with costs.