1. ' AJMAL MIAN, J.-These 51 petitions involved common questions of, law and fact and, therefore, we intend to, dispose of the same by this common judgment. The controversy in the above petitions is, whether the chemical known as Tatra Propylene Benzene Sulphonic Acid 97% (hereinafter referred to as the chemical) falls under P. T. C. Heading 29.03 which the petitioners claim or under P. C. T.
2. Heading 34.02 which the respondents claim except in Constitutional Petition No, 1078/75 the chemical was imported under the caption "Supltionie Acid 96% and the petitioners claim that it was to be assessed under P. C. T. Heading 38.19, whereas the department had assessed under P. C. T.
3. Heading 34.02. The petitioners in the above petitions have prayed for a declaration that the chemical is liable to be assessed under P. C. T. Heading 29.03, and not under P. C. T heading 34.02 except that in above Constitutional Petition No, 1078/75 the petitioners have sought declaration that Sulphonic Acid 96% was liable to be assessed under P. C. T. Heading 38.19. Mr. Mansoor Ahmed Khan has appeared in 47 petitions on behalf of the petitioners, whereas Mr Khalid Anwar has repreimted petitioners in four petitions namely, 1726/78, 456/79, 457/79 and 732/79.
2. (a) Mr. Mansoor Ahmed Khan in support of the petitions has contended that the Customs Department for about 4 years prior to the consignments in dispute had followed consistent practice of assessing the chemical under P. C. T. Heading 29.03 and therefore, this practice could not have been departed.
(b) Mr. Khalid Anwar has urged as follows :-
(1) That since the Customs Department had assessed the chemical under P. C. T. Heading 29.03 for a number of years, the above practice could not have been departed.
(ii) That even if the Customs Department wanted to depart from the above practice, it could not have done.So without the express approval of the Central Board of Revenue.
(iii) That the Customs Authorities were under statutory duty to apply their own mind as to the classification on the basis of the material which was before them or which might have been placed by the petitioners and cannot rely upon the opinion of a foreign person or agency.
(c) On the other hand Mr. Aziz Munshi, learned Deputy Attorney-General for the respondents has advanced the following arguments :
(i) That the petitioners have failed to prove that the Customs departments had consistently assessed the chemical under P. C. T. Heading 29.03 for a number of years as to constitute a practice.
(ii) That since the chemical was imported from various sources, the question whether particular chemical imported has ingredients to qualify itself under P. C. T. Heading 29.03 or under heading 34.02 is a question of fact which cannot be adjudicated upon by this Court and that most appropriate forum is the heirarchy of the tribunals set up under the Customs Act.
(iii) That the respondents have correctly assessed the chemical under P. C. T. Heading 34.02.
(iv) That the respondents will have no objection if the matter is remanded to the Collector of Customs for adjudication upon the controversy even at this stage.
3. In order to appreciate the respective contentions of the parties, it may be advantageous to reproduce hereinbelow P. C. T. Heading 29.03 and P. C. T. Heading 34 02, which read as follows :- "29.03 Sulphonated, nitrated or nitrosated derivatives of hydrocarbons. {{TABLE}} A. Nitrobenzene (mirbane oil) 85% ad val. 10% 511.
4. B. Other 40% ad val. 10% 55.11 34.02 Organic surface-active agents ; surface-active preparations and washing preparations, whether or not containing soap. A. Organic surface-active agents.
5. 01 Sulphonated oils 40% 20% 554.2 02 Other 40% 20% 554.2 B. Surface-active preparations. 100% 20% 554.2 C. Washing preparations (deter- gents). 100% 20% 554.2 D. Cleaning preparations 100% 20% .554.2 E. Other 100,% 20% 554.2." {{TABLE}} ' The learned counsel for the parties have also referred to the notes to Chapters 29 and 34 of the P.
6. C. T. In support of their respective contentions. It may be pertinent to mention that notes to Chapter 29 inter alia provide that where. The context otherwise requires the headings of this chapter are to be taken to apply only to (at separate chemically defined organic compounds, whether or not containing impurities, (b) mixture of two or more isomers of the same organic compound (whether or not containing impurities), except mixtures of acylic hydrocarbon isomers (other than sterisomers), whether or not saturated (Chap : 27). Whereas notes to Chapter 34 inter alia provides that the above chapter does not cover (a) separate chemically defined compounds ; or.....
7. ' It is the case of the petitioners that since the chemical is separately defined compound, it falls under Chapter 29 and, therefore, is subject to levy of Sales Tax at 10 % ad val,- it is not covered by Chapter 34, whereas the contention. Of the respondent department is the chemical is not separate chemically defined but a mixture of number of chemicals and that it contains ,ingredients of organic surface active agents, and, therefore, is ,covered under Chapter 34 and is liable to levy of Sales Tax at 20% ad val.
4. (a) It may be advantageous to first take up the basic contention, namely, that since the respondent department had assessed the chemical for a number of years under P. C. T. Heading 29.03, this practice cannot be departed. In this regard learned counsel for the petitioners have made reference to the averments. The first petition which was filed is of 1975 i. e. C. P. No, 10.8/75. In the above petition as observed hereinabove the contention of the petitioner was that the Sulphonic Acid 96% minimum imported, fell under heading 38.19 and not under heading 29.03 which is the contentions advanced in the remaining petitions. The second petition which was filed was in the year 1978, namely, Constitutional Petition No, D-1726/1978 filed on 30-12-1978, in which the subject- matter of the import mentioned was the chemical in question i. e. Tetrapropylene benzene sulphonic acid and it was contended first time that the chemical falls under P. C. T. 29,03 and not under P. C. T. Heading 34.02 as claimed by the Customs. It may be pertinent to quote hereinbelow paras. 2, 3, 4, 5 and 6 of the petition, which read as follows :- "2. That the said godds have been imported into Pakistan for about 2 years. The first consignment was imported by Messrs Dada Soap Factory Ltd. Who declared it as being assessable under P. C. T.
8. Heading 29.03.
9. 3.That the said consignment was provisionally cleared under the above-mentioned P. C. T.
10. Heading. Thereafter the Customs Department issued a notice under section 32 of the Customs Act, 1969, (hereinafter referred to as the said Act), wherein it was claimed that the consignment had been incorrectly assessed under the said heading and should actually be assessed under Heading 34.02.
11. ' A true copy of the said notice, dated 19-4-1977 is being attached herewith marked 'A'.
4. That in response to the said notice a reply dated 30-4-1977 was submitted wherein it was pointed out that the principal reason why the consignment fell under heading 29.03 was that it was a chemically defined organic compound and by reason thereof fell outside the scope of entry 34.02.
12. ' A true copy of the said reply is attached herewith marked 'B'.
13. 5.That thereupon the Customs Department referred the case to the Chemical Examiner, Customs House, who submitted a detailed report in terms whereof he came to the conclusion that the said goods were chemically defined and hence classifiable under heading 29.03. In view of the report of the Chemical Examiner it was clear that no further doubt remained regarding the matter.
14. Furthermore, the manufacturers had also issued a certificate to the same effect. Accordingly, by means of a further letter, dated 16-6-1977 the Customs Department was requested to expedite the case and decide the matter conformably to the above.
15. ' True copies of the further letter dated, 16-6-1977 and the manufacturer's certificate are being attached herewith marked 'C' and, 'D'.
16. 6.That ultimately the Customs Department withdrew the demand notice and gave the clear finding that the said goods were assessable under heading 29.03."
17. ' It may be noticed that in the above-quoted paras. The averment was that the goods i. e. The chemical had been imported into Pakistan for about two years and that the petitioner's first consignment of the year 1978 referred to hereinabove was provisionally released under P. C. T.
18. Heading 29.03. After that a notice was issued by the Custom Department under section 32 of the Customs Act, 1969 averring therein, that the goods were wrongly assessed under P. C. T. Heading 29.03 as they were assessable under P. C. T. Heading 34.02 but subsequently the above notice was dropped. The show-cause notice was issued on 19-4-1977 in the above petition and the notice was dropped probably sometime in 198 or 1979 as there is no date either in the petition or in the photostat copy of the annexure annexed with the above petition (Annexure 'E' to the petition). It may be pointed out that the chemical in the above petition was imported from Yugoslavia.
19. However, it seems that the Customs Department as early as in February, 1979 contended that the chemical was liable to be assessed under P. C. T. Heading 34.02 and not under 29.03 and therefore, the petitioner had to file Constitutional Petition No, D-456 of 1979. After that five more petitions were filed in 1979, 17 petitions in 19 0, 11 petitions in 1981, four petitions in 1982 and 11 petitions in 1983. From the annexures to the counter-affidavit filed in the petitions on 19-4-1983,-it seems that the respondent department had referred the matter in 1979 for classification to the Customs Co- operation Council Brussels, in response to which one Mr. J. H. Hoguet, Director of the above Council forwarded his opinion, dated 17-11-1980 stating therein, that since the chemical contains some 40% compounds which are not isomers of tetraproply benzene sulphonic acid, he was of the opinion that it must be excluded from Chapter 29 and classified under Heading No, 34.02.
(b) Mr. Mansoor Ahmed in his first petition filed in 1979, namely, Constitutional Petition No, D- 1949/79, in support of the averment that the chemical was allegedly cleared by the Customs Department under P. C. T. Heading 29.03 in the past enclosed a list of 19 consignments (Annexure 'E' to Petition No, D-1949/79). The above 19 consignments consisted of one consignment of the year 1975, 8 consignments of 1976, 7 consignments of 1977 and 3 consignments of 078 However, the above annexure does not contain the detail as to the country from where the chemicals were imported and whether originally the Customs had demanded Customs duty under P. C. T. Heading 34.02. The respondents have filed a detailed counter-affidavit in the above writ petition of 1915 but they have filed short counter-affidavit in the other petitions alongwith the above alleged report received from the Brussels except about 17 petitions in which no counter-affidavit has been filed. All the above petitions were ordered to be heard together. In the above short counter-affidavit, there is general denial of all the allegations contained contrary to what has been averred in the counter- affidavit. There is no specific denial to the averment of the petitioners that the above 19 consignments were assessed under P. C. T. Heading 29.03. Be that as it may, the question in issue is, whether on the basis of the material before this Court a practice of the nature which can bind the department can be inferred.
(c) Mr. Mansoor Ahmed Khan in support of his contention has referred inter alia to paras. 219 and 221 from the well-known book on Statutory Construction, Interpretation of Laws, by Crawford 1940 edition. It may be advantageous to reproduce hereinbelow relevant portion of the above paras.
20. Which reads as follows :- "219. Executive construction.- As a general rule executive and administrative officers will be called upon to interpret certain statutes long before the courts may have an occasion judicial construe them. Inasmuch as the interpretation of statutes is a judicial function, naturally the construction placed upon a statute by an executive or administrative official will not be binding upon the Court.
21. Yet where a certain contemporaneous construction has been placed upon an ambiguous statute by the executive or administrative officers, who are charged with executing the statute, and especially if such construction has been observed and acted upon for a long period of time, and generally or uniformly acquiesced in, it will not be disregarded by the courts, except for the most satisfactory, cogent or impelling reasons. In other words, the administrative construction generally should be clearly wrong before it is overturned. Such a construction, commonly referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight. It is highly persuasive.
22. ' And where vested rights have grown up under the departmental construction, the Courts are justify in being more reluctant that in ordinary cases in adopting a construction which will destroy or disturb such rights. A similar reluctance is also proper where a departure from the, executive interpretation will result in injustice, or where contracts have been entered into with the Government in reliance on the departmental construction.
23. ' Undoubtedly, the contemptemoraneous construction of executive and administrative officers, that is, the construction placed by such officers on a statute at the time of, or soon after its enactment- even though it is entitled to some weight should not receive as much as where the departmental construction has been followed for a long time. And in either case, if the legislature impliedly approves the construction of an administrative or executive officer by later legislation, or fails to indicate its disapproval of such a construction when the same statute or one.
24. "221. Construction by the Executive Department Analyzed.-Of course, the construction placed upon a law by the executive department is not the law of the statute but only evidence of what the law is.
25. It is simply an aid to which the Courts may resort in their efforts to ascertain the legislative intent. It may be set forth as an argument or a reason for the acceptance of a certain construction, for where the executive places a certain interpretation upon a law, that fact would seem to indicate that the interpretation represents the legislative will. At least, the interpretation given the statute by the executive officer would seem to be the obvious one and therefore the one actually intended by the law-makers. But to give the construction placed upon a law the power to control the Court in its interpretation thereof; would clearly vest legislative, if not judicial power, in the executive department. As we have already pointed out, where the executive construction has been followed for a long time, an element of estoppel seems to be involved. Naturally, many rights will grow up in reliance upon the interpretation placed upon a statute by those whose duty it is to execute, it. Often grave injustices will result should the Courts reject the cons traction adopted by the executive department. But actually; in many cases of this type, that is, in those where the executive construction does not actually give the legislative intent effect, the officials who administer the law exercise legislative or judicial power, or both. Practical considerations and considerations of justice, however, seem of more importance in these instances than a street adherence to the tripartite theory of Government."
5. (a) The learned counsel for the petitioners has also referred to the case of Nazir Ahmed v. Pakistan and 11 others (1), the case of Messrs Muhammad Anwar Muhammad lqbal Brothers Ltd., Karachi v. Collector of Customs and 3 others (2) and the second case reported in the same volume, namely, Messrs Abdul Majeed Khan v. Collector of Customs and another (3), the case of Collector of Customs (Appraisement), Karachi and others v. Messrs Abdul Majid Khan and others (4) and the case of Suhedar Muhammad Asghar v. Mst. Safia Begum and another (5).
26. ' On the other hand Mr. Aziz Munshi learned Deputy Attorney-General has referred to the case of Kohinoor Chemical Company Limited and another v. Sind Employees Social Security Institution and another (6).
(i) In the first case the Hon'ble Supreme Court while considering the question whether the words "appointed at one time" used in rule _8 of the Rules framed by the Posts and Telegraph Department for recruitment and training of Engineering Supervisors, Carrier Attendants and Wireless Operators, should be given the same meaning which was given by the department fora quite long period of time and whether the department's departure from the above interpretation was not justified made inter alia the following observations :- ' Mr. Mahmood Ali Qusuri, the learned counsel for the appellant, has contended that the construction of the words "appointed at one time" as meaning "selected at one time for training" has been consistently interpreted by the department itself in that sense, and that if a different view is now taken, the seniority of a large number of Engineering Supervisors will be upset. He has cited instances to support his submission which illustrate that the department has maintained seniority of the candidates in the cadre from the date of their selection for training after passing the competitive examination of the Engineering Supervisors in a particular year irrespective of the dates of their subsequent postings to their jobs. To check this point, we had sent for the Director- General of the Department who was unable to controvert this position. The departmental practice has followed the right course in the implementation of the relevant rule but whether right or wrong, it will be extremely unfair to make a departure from it now after a lapse of so many years and to disturb rights that have been settled by a long and consistent course by this practice. In the case of the appellant, the seniority initially accorded to him has held the ground continuously for ten long years until it was disturbed by the impugned order. This, to say the least, is bound to weaken the faith of the employees in the attitude and behaviour of the department. A passage from Crawfords Statutory Construction (.1940 edition at page 399) may be usefully reproduced to point out the effect of "departmental construction", that is to say, the construction which is placed in practice on the provisions of a statute or rules by the administrative authorities who are charged with the execution of the statute or the rules. The learned author observes : "Whether the executive construction has been followed for a long time an element of estoppel seems to be involved.
27. Naturally many rights will grow up in reliance upon the interpretation placed upon a statute by those, whose 'duty it is to execute it. Often grave injustices would {{FOOT NOTE}}
(1) PLD 1970 SC 453 (2) PLD 1976 Kar. 253
(3) PLD 1976 Kar. 446 (4) 1977 SCMR 371
(5) PLD 1976 SC 435 (6) PLD 1977 SC 197 {{FOOT NOTE}} ' result should the Courts reject the construction adopted by the executive authorities."
(ii) Before taking up the second case, it will be appropriate to take up third case, namely, PLD 1976 Kar. 446 as it was decided earlier and was relied upon in the subsequent case reported in the same volume at page 253. In the above third case (Messrs Abdul Majid Khan v. Collector of Customs and another) a Division Bench of the erstwhile High Court of Sind and Baluchistan while construing item at serial No. 128(h) Part A mentioned in the Import Trade Control Order bearing No. S. R.
0. 722 (J)/75 dated 30th June, 1975, held that the terms "tubes" and "pipes" are not synonymous and that the ban provided for the import of steel pipes could not have been extended to the import of steel tubes.
(iii) As regards the third case (Messrs Muhammad Anwar Muhammad lqbal Brothers Ltd., Karachi v.
28. Collector of Customs and 3 others) a Division Bench of the erstwhile High Court of Sind and Baluchistan while relying upon the above earlier judgment has referred inter alia to the question of the Customs departmental practice treating for a long period tubes and pipes as two separate items with reference to the description of the item given in the above serial No. 128 (h) of the above Import Trade Contra' Order, which provided free list for the period commencing from 1st January, 1974 to June, 1975 and reads as follows :- "Iron and steel pipes and tubes and fittings thereof excluding G. I. Pipes and black pipes."
29. ' The controversy was, whether the above exclusion of G. I. Pipes and black pipes would cover steel tubes. In that context it was held that the terms "pipes" and "tubes" have different connotations in the dictionaries as well as they were understood as such by the Customs Department for quite a long period. It may be advantageous to reproduce hereinbelow certain observation on the question of practice which reads as follows:- "There is also force in the contention raised by the learned counsel for the petitioners that since the Customs Department as a practice had been consistently construing pipe as different from tube for a long time and on that basis had released several consignments of similar goods, the said departmental practice was binding on it and could not be deviated or departed from in the case of the petitioners.
30. ' Indeed, it was not disputed that number of consignments of similar goods of the same specifications imported by other private importers under the same serial No. 128 (h) for the same shipping period, were released by the Customs Department on the basis of the departmental practice of construing tubas as different from pipes. In this view of the matter, there existed no justification for them to deviate and depart from it when it came to releasing the goods of We present petitioners. In Nazir Ahmad v. Pakistan P L ) 1970 SC 453 their Lordships observed that where departmental practice has followed a course in the implementation of the 'rule whether right or wrong, it will be extremely unfair to make departure from it after a lapse of many years and to disturb rights that have been settled by consistent course by that practice. Indeed, the learned Deputy Attorney-General himself admitted that such departmental practice, in the circumstances of this case, was binding on, Customs Department in the case of the petitioner's goods, as it had earlier released several consignments of tne similar goods of the same specification, imported by other private importers under the same serial No. 128(h) of the Import Policy for the same shipping period.
31. ' For the aforesaid reasons and following the decision given by the Division Bench of this Court in Constitutional Petition No. 755 of 1975, we hold that the impugned orders passed by the authorities below confiscating the goods of the petitioners are without lawful authority and of no legal effect and, accordingly, allow these petitions but with no orders as to costs. The result was announced by us at the conclusion of the arguments and above are the reasons for it."
(iv) Reverting to the fourth case, it may be observed that the case of Abdul Majeed Khan and others v. Collector of Customs (Appraisement) Karachi and others alongwith other connected cases was taken up to the Hon'ble Supreme Court by the Collector of Customs in appeal but the above appeal and the connected petitions for leave were dismissed by an elaborate judgment by the Hon'ble Supreme Court. It was held that the term pipes and tubes were not synonymous and they had different meanings and, therefore, the exclusion of the steel pipes from the free list of Import would not exclude the import of tubes. In this connection, it may be advantageous to quote hereinbelow a passage from the above judgment on the question of past practice, which reads as follows :- "A look at these successive Import Policies is sufficient to arrive at the conclusion that the Central Government has in the past all along consistently regarded the pipes and tubes as distinct and separate communities' and never for once even treated the two as synonymous. A fortiori it cannot be held that the omission of the mention of tubes in the exclusion clause in the entry at serial No. 128(h) in question from the Free List, Part A (Annexure 'I') of the Import Policy Order, 1974 was inadvertent only and not deliberate.
32. ' According to the Oxford English Dictionary "tube" means a hollow body, usually cylinderical and long in proportion to its diameter of wood metal glass or other material, used to convey or contain a liquid or fluid, or for other purposes ; a pipe. . It is "a more recent and a mare generic term than a pipe in which the form of the thing is chiefly considered and thus used in reference to many things to which pipe is not applied, pipe being an older term retained for tubes used for passage of liquids, smoke, air or gas while tube is applied for most recent invention; but the distinction is often arbitrator depending on the custom of the workshop." From this definition it follows that strictly speaking the term "Tube" is not synonymous with but distinct from "pipe". Tube is a more recent and a more generic term than a pipe and is used in reference to many a thing to which pipe is not applied. It is applied to most recent inventions. It cannot, therefore, be legitimately urged that there is no distinction between the two, although at time this distinction may be thin and may even tend to vanish. Yet strictly speaking the two are not synonymous."
(v) As regards the fifth case reported in PLD 1976 SC 435, it will suffice to observe that the Hon'ble Supreme Court while construing the provisions inter olio of sections 10(2) (3) and 11 of the Government Grants Act, 1895 and certain provisions of the Scheme framed under the Colonization of Government Lands (Punjab Act, 1912 has made a reference to the comments made by the Statute Law Committee in its report in 1892 in England on the practice of Departments on issuing rules, orders etc. In the above report, it was recommended that due publicity was essential before exercising the above delegated power. In our view, this case has no direct bearing as the Hon'ble Supreme Court itself has pointed out in the last para. At page 445 of the judgment that there are no similar enactments in force in our country for such a control on the statutory instruments and the delegated legislation and absence of this has added to the confusion in distinguishing statutory instruments from purely executive actions.
(b) Whereas in the case relied upon by Mr. Aziz Munshi the Hon'ble Supreme Court while construing certain provisions of West Pakistan Employees Social Security Ordinance, 1965 held that the departmental construction of a provision of law although is relevant but is not binding on the Court.
6. There cannot be any cavil to the propositions of law propounded in the above-cited book of Crawford on Statutory Construction and the cases.
33. We are inclined to hold that in order to press into service the departmental practice of putting particular construction on a provision of P. C. T. Heading as to bind the department, it is necessary to show that for a long period of time, the construction sought to be pressed into service, was placed by the department itself consistently and generally or uniformly acquiesced in. In the instant case the chemical has been imported by the petitioners from the various countries of origin, namely, Yugoslavia, West Germany, Norway, Singapore, Korea and Japan having different percentage of Tetra Propylene Benzene Sulphonic Acid as per the petitioners' documents i. e.
34. Varying from 96% to 97 Min. The list of the 19 consignments f Annexure `E' to Constitutional Petition No. D-I949/79) which were allegedly assessed by the Customs Authorities under P. C. T heading 29.03 during the period commencing from December 1975 to 7t1. August, 1918 lack particulars as to the origin of the countries etc. The very fact that a petition was filed in .975 in which a lengthy affidavit, justifying the application of P. C. T. Heading 29.03, and thereafter, the petitions have been filed in 1978, 1979, 1980, 1981, 1982 and 1983 and that the matter was referred to Brussels in 1979 prima fade reflect adversely on the alleged consistent practice. It will, therefore, suffice to observe that the material placed before us is not sufficient to conclude that the respondents for a long period had been consistently assessing the chemical under P. C. T. Heading 29.03 prior to the filing of the above petitions. However, we would not like to express our opinion definitely even on this point, as we intend to remand the case to the Collector of Customs for adjudicate with the direction that it will be open to the parties to raise whatever pleas they intend to raise. It will, therefore, be open to the petitioners as well as to the respondents to bring on record further material to lend support to their respective contentions.
7. Mr. Khalid Anwar has referred to a photostat copy from the General Manual of Orders relating to Customs & Tariff Laws (corrected upto 31st December, 1964) in which the following passage as regards to the departure from existing practice is provided for, which reads as follows :- "Departure from existing practice.-Where there is a question of departing from existing practice whether governed by .Express orders of higher authority or not, the Collector of Customs should, if the proposed departure is in the direction of an assessment more favourable to the importer, adhere to the existing practice and make a reference to the Central Board of Revenue, accepting duty meanwhile from the assessee under protest, if the assessee so requires. Where the Collector contemplates a change to a higher assessment than has been the practice, he should not talc; action upon his view, until he has obtained orders, but such orders would not have retrospective effect.
35. ' Note-The term "Existing practice" has been used with reference to identical entries in the Tariff Schedule. Where there has been art amendment of the Tariff Schedule with an alteration of definitions, all existing practice in respect of the goods affected becomes obsolete."
36. It may be noticed that in the above-quoted para, it has been clearly provided that the Customs Department cannot depart from the existing practice without making reference to the Central Board of Revenue. In this regard Mr. Khalid Anwar has referred to proviso to section 4 of the Customs Act, 1969, which provides that notwithstanding ling anything contained in the Act or the rules, the Board may, by general or special order, impose such limitations or conditions on the exercise of such powers and discharge of such duties as it thinks fit. We are inclined to hold that if a practice is proved, an aggrieved party can press into service the above-quoted para. From the General Manual of orders relating to Custom and Tariff laws if in force at the relevant time. It will be open to the petitioners to argue this point before the Collector of Customs.
8. The question, whether the chemical falls under P. C. T. Heading 29.03 or under P. C. T. Beading 34.02 can be re3olved by subjective examination of the ingredients of each consignment. In our view, the instant cases cannot be equated with the cases of steel pipes and steel tubes referred to in the above Karachi judgments and of the Hon'ble Supreme Court judgment. There the question, as observed hereinabove, was whether in the context of item No. 126 (h) of the Import Control Trade Order, the exclusion of G. I. Pipes and black pipes shall include the tubes which were separately mentioned in the same item, for the purpose of Free List. We may .Again observe that the consignments have been imported from six different countries of origin and therefore, the matter cannot be generalized and the appropriate forum for adjudicating upon the question, whether particular chemical falls under a particular P. C. T. Heading on the basis of its ingredients is a question more eminently suitable for adjudication upon by the hierarchy of the tribunals set up under the Customs Act and the rules framed thereunder. We hay: refrained ourselves from expressing our view on the material furnished by the petitioners and the respondents on the controversy whether the chemical falls under P. C. T. Heading 29.03 or P. C. T. Heading 34.02 as the parties may be prejudiced. However, we may observe that the Collector of customs cannot solely rely upon the opinion allegedly conveyed by the Director of the Customs Co-operation Council in his letter dated 17th November, 1980 as it may be a piece of material which is to be considered alongwith the other material which the parties may produce before the Collector of Customs. The contention of Mr. Khalid Anwar that under law, the Collection of Customs is under statutory duty to apply his mind to the facts of the case and not to abdicate his authority in favour of a foreign agency is not without force. In this regard he has referred to the case of Messrs S. A. Haroon and Muhammad Sharif v. Collector of Customs, Karachi (1). It may be pertinent to quote a relevant passage from the above judgment on the point in issue which reads as follows "For whatever it was worth, therefore, the report contained in the statement of the Assayer could be treated as relevant material by the Collector and no principle of natural justice would be violated if adequate opportunity was given to the appellants for rebuttal of this {{FOOT NOTE}}
(1) PLD 1967 SC 458 {{FOOT NOTE}} ' material. The Collector called upon the appellants to submit interrogatories for further examination of the Assayer but this offer was also not availed of.
37. ' The appellants, however, did attempt rebuttal of the Assayer's report, which is dated the 20th of September, 1955. They produced in the second enquiry before the Collector, a certified copy of the statement made by Mr. Abdul Jalil, Superintendent of the Assay Department of the Government Mint at Lahore, in another case before a Civil Judge, in which he had deposed that the maximum fineness of gold achievable in Pakistan was 999.3 for 1000 parts, which the witness had obtained by a refining process carried out in Suha Bazar, Lahore. He also stated that the standard quality of Mint gold had a fineness of 999.5 for 1000 parts. This statement was made on the 12th of March 1960. In addition, a copy of a judgment of the Central Board of Revenue, dated the 9th October, 1960, was relied upon by the appellants, in which it had been held that, in accordance with the opinion of Mint Officers at Lahore, the fineness of 998.9 and 999.8 per 1000 parts could be achieved by usual methods of refining, adopted in this country. This material has to be placed in juxta-position with the opinion of the Assayer on which the Collector relied, to the effect that the fineness of gold refined in the private refineries can vary between 994.3 and 997.5 as the five samples submitted to him showed. The source of these 5 samples is not revealed and it is by no means certain that they represent the best that local refineries could achieve, in 1955. Out of the 33 samples of the seized gold in the present case, sent to him, 26 were found to be of higher fineness than that of these 5 samples, but 7 were of lower fineness. None of the higher figures apparently exceeds the figures of fineness declared as achievable by 'local methods of refining in Pakistan, according to the Board's order, dated the 29th October 1960. The two opinions, therefore, which were marshalled by the appellants in rebuttal of the Assayer's report, had necessarily to be taken into account before arriving at a conclusion in this case. The Assayer's categorical statement by itself could not be accepted as conclusive.
38. ' The treatment of this rebuttal by the learned Collector appears to us to be open to grave exception. The learned Collector was of the opinion that as the Mint report on which he had himself relied ; was not challenged till the verdict of the Supreme Court in 1959, the statement of Mr. Abdul Jalil in the Civil Court and the Board's order in another case were not relevant. By what process of reasoning the learned Collector convinced himself of the justness of this inference, is not easily comprehensible. To us it appears that the material adduced in defence by the appellants was if possible of relatively higher status than that, utilized by the learned Collector for his decision in so far as it had the weight of authority behind it of an order passed by the Central Board of Revenue itself. In no case could this material be disregarded as irrelevant. There is no warrant for the assumption made by the Collector apparently to the effect that refining methods in Pakistan may have improved in 1960 as compared with 1955. The value of the material adduced in rebuttal had to be assessed in comparison with the opinion expressed by the Assayer. It is plain that if all this material had been considered together it could not be said that the state of fineness of the seized gold was a probable indication of its foreign origin, muchless a conclusive one."
39. It may be noticed that Hon'ble Supreme Court depricated the approach of the Collector of Customs in the above-cited case on relying upon the analyser's report instead of considering all the materials on record. We may, therefore, observe that the Collector after the remand of the above cases will provide opportunity to the parties to bring on record further material with the object to prove their respective contentions and would not solely rely upon the above alleged report from the Brussels.
9. We, therefore, remand the case to the Collector of Customs (Appraisement) (i. e. Respondent No. 1) with the direction that be. Will after notice and after providing opportunity to the parties to lead further evidence and to place further material can record to adjudicate upon the question whether the chemical falls under P.C.T. Heading 29.03 or under P.C.T.
40. 34.02. We further order that till the adjudication of the above question, the bank guarantees shall remain intact and shall not be encashed. However, the petitioners shall get the bank guarantees extended within a period of six weeks from today in any bank guarantee in any of the instant cases has expired and they shall continue to extend the same till the adjudication of the above question.
41. ' The above petitions stand disposed of in the above terms with no order as to costs.