' AJMAL MIAN, J.-These 4 petitions raised common questions of facts and law, and, therefore, we intend to dispose of these petitions by this common judgment. The brief facts leading to the filing of the above petitions are that the petitioners imported certain goods from abroad, which arrived at Karachi Port on 6-4-1977 through, n. v. Randras (hereinafter referred to as the vessel). The Master of the vessel filed manifest on 6-4-1977, which was registered as I. G. M.
430. It seems that the petitioners in C. P. No, 428/77 filed bill of entry under section 79 of the Customs Act in advance on 7-2-1977 and in C. P. No, 442/77 on 22.3-1977, whereas, in 484/77 bill of entry was filed on 6-4-1977 i. e. On the date of the arrival of the vessel on 10-5-1977. It further seems that the vessel could not discharge its entire cargo for the ' reason that berth was not available.
However, the vessel was sole to discharge part of the cargo through small beats. It further seems that the berth was made available to the vessel on 19-7-1977. It is the case of the respondents (though no counter-affidavit has been filed by them) that since the berth was not available on the arrival of the vessel, the same went to some other port without obtaining any certificate under section 51 of the Customs Act and without permission from the Port Authorities and came back to Karachi Port in July, 1977. However, it is the case of the petitioners that the vessel remained at the outer anchorage of the Karachi Port.
2. The question in issue is, whether the petitioner were liable to pay Customs duty at the rate prevalent on the date of nog of the manifest by the Master of vessel on 6-4-1977 or on the date of filing of the second manifest on 19-7-1977 and on the dates of filing of bill of entries. It is an admitted position that the first manifest was filed by the Master of the vessel in accordance with the provisions of the Customs Act and was accepted and registered as I. G. M.
430. It is further an admitted position that some of the cargo was discharged through the small boats and the second manifest was filed in order to reflect the remaining cargo of the vessel. The relevant section on the point in issue is section 30 of the Customs Act, 1969, which reads as follows :- "Section 30. Date for determination of the value and rate of import duty.-The value of, and, the rate of duty applicable to, any imported goods shall be the value and the rate of duty in force :
(a) in the case of goods cleared for home consumption under section 79, on the date on which a bill of entry is presented under the section ; and
(b) in the case of goods cleared from a warehouse under section 104, on the date on which a bill of entry for clearance of such goods is presented under that section : ' Provided that where a bill of entry has been filed in advance of the arrival of the conveyance by which the goods have been imported, the relevant date for the purposes of this section shall be the date of which the manifest of the conveyance is delivered : ' Provided further that, in respect of goods for the clearance of which a bill of entry for clearance has been presented under section 104, whether before or after the commencement of the Finance Ordinance, 1979, and the duty is not paid within seven days of the bill of entry being presented, the value and rate of duty applicably shall be the value and rate of duty applicable on the date on which the duty is actually paid."
' It may be noticed that under clause (a) of the above-quoted section 30, the rate of duty applicable to the imported goods cleared for home consumption under section 79, is the rate of duty obtaining on the date of presentation of a bill of entry to the Customs Authorities and in the case of goods cleared from a warehouse under section 104, the rate prevalent on the date of payment of customs duty. However, it is subject to the condition that if a bill of entry under section 79 has been filed in advance of the arrival of the conveyance by which the goods have been imported, the relevant date for the purpose of the above section shall be the date on which the manifest of the conveyance is delivered.
3. In the instant case admittedly manifest was delivered and registered on 6-4-1977, but as a berth was not available the entire cargo could not be discharged in April or May, 1977. In our view, the fact that a second manifest was filed for the reason referred hereinabove in paragraph 2, had not affected the dates for determining the rate of customs duty in terms of the above-quoted section 30 of the Act. It may be observed that the respondents had assessed the customs duty in respect of bill of entries which were filed in advance prior to the date of arrival of the vessel on the basis of rates of duty then prevalent, whereas in the other cases after the arrival of the vessel on the basis of the dates of presentation of the bill of entries.
' It may also be pertinent to refer to a D. B. Case of this Court namely, Amerliwala Hardware Industries Karachi v. Collector of Customs and another (1). It may be advantageous to reproduce hereinbelow paragraphs 5 and 6 of the above judgment, which read as follows :- "5. We have examined with care the two manifests dated 15-8.1975 and 27-8-1975 delivered by the Master of the vessel Rangamati to the Customs Authorities and to our mind the conclusion is irresistible that the second manifest was in fact a supplementary manifest. That the second manifest was filed by the Master expressly as the supplementary manifest is admittedly so. What is more, however, is that even the Customs Authorities have acted upon it as a supplementary manifest. The second manifest starts with sheet No, 2 being the continuation of the sheet marked one of the first manifest. It has been described in the endorsement made by a customs official as a supplementary manifest. The second manifest has not been given a separate I. G. M. Number but bears the same number as of the first manifest. It is not possible to read the second manifest independently of the first manifest for without the Annexures of the. First manifest and the endorsement thereon that there was no drug or opium on ' board, the second manifest would be an incomplete document. In the show-cause notice addressed to the National Shipping Corporation the Assistant Collector of Customs describes the second manifest as the supplementary manifest. If it was the case of the Customs Department that the first manifest was non-existent in the eye of law, then the proper and obvious allegation against the Master of the vessel or the shipping Company would have been failure to deliver manifest within 24 hours and, therefore, an offence under section 156(2)(a). Moreover, there would be no occasion to allege contravention of subsection (2) of section 45 in the show-cause notice if the second was not a supplementary manifest. The learned Deputy Attorney-General contended that the second manifest must be looked and examined on its own to ascertain its true character notwithstanding its description given by the Customs Officers as a supplementary manifest. We are, however, inclined to think that responsible officers of the Customs would not have given to a document a known legal nomenclature without meaning it. If the first manifest was not acceptable to the Customs the least they could have done was to return the same and call upon the Master of the vessel to forthwith file a proper manifest and not rest content with a delayed second manifest notwithstanding the mandatory requirements of section 43 for delivery of manifest within 24 hours after anchoring. In the circumstances we find no merit in the contention of the learned Deputy Attorney-General that the manifest relevant for determining the rate of duty was the manifest dated 27-8.1975 and not the manifest delivered and accepted on 15-8-1975 at 10.15 hours.
6. We have also found substance in the argument of Mr. Haider Mota, the learned counsel for the petitioners that the manifest for the purpose of calculating customs duty under section 30 is this manifest delivered by the Master and accepted by the Customs notwithstanding its incompetence or inadequacy under section 45(1) for only that part of manifest is relevant for the purpose of section 30 which determines the arrival of the vessel and consequently the date of import. Any other interpretation would bring about absurd consequences. If in the present case, for examine, the duty was higher on 15-8-1975 will the
(1) PLD 1976 Ku. 196 revenue be deprived of it by the omission of the Master to fully comply with subsection (I) of section 45. What would have been the consequences, if in the present case the omission in the manifest was in giving the required specifications or details regarding half of the total enviable cargo ? Surely it is not the intent of the law to make the duty payable dependent upon the will of the Master of the vessel or his caprice or neglect."
The above Karachi case lends support to the view, which we are inclined to take.
4. We, therefore, allow the above petitions and declare that the respondents are entitled to recover customs duty etc. At the rate obtaining on 6-4-1977 in respect of the bill of entries which were filed in advance and at B the rate prevalent on the dates of presentations of bill of entries in those cases in which bill of entries were filed after the arrival of the vessel on 6-4-1977.
' We may observe that if any further amount is payable by the petitioners towards the customs duty etc. After calculating the amount on the above basis declared by this Court hereinabove the respondents may apply to this Court for encashing the bank guarantees to the extent of the amount payable or to apply to this Court for payment of further amount in case in which cash amount has been deposited with this Court instead of furnishing a bank guarantee. But in case no further amount is payable by the petitioners, the bank guarantees shall stand discharged and the cash amount shall be refunded upon the petitioner's concerned application, after the expiry of two months from today unless the respondents obtain a stay order from the Honourable Supreme Court against encashing the bank guarantees and refunding of the amount.
' In the circumstances of the case there will be no order as to costs.