1. ' SAEEDUZZAMAN SIDDIQUI, J.-The petitioner imported a consignment of tyres and tubes of the sizes 6.45 x 14 and 7.00 X 14 valued at Rs, 55,824,62 from Korea under import licence issued to it pursuant to import policy of the Government for the period 1972-73 issued under S R 0 54 (1)/72, dated 15th May, 1972. The dispute in the petition however relates only to a part of the consignment valued at Rs, 15,707 in respect of the tyres and tubes of the size 7.00 x 14. Therefore, whenever, reference is made in this order hereafter to the "tyres imported by the petitioner" it will only mean the tyre size 7.00 x 14. It is alleged by the respondents that the tyres imported by the petitioner were in fact the replacement size of 7.50 x 14 import whereof was prohibited under the Import Policy. Respondent No, 3 initially on 25th January, 1973 issued a show-cause notice to the petitioner alleging that upon scrutiny of the relevant documents it transpired that the tyres imported by the petitioner was a replacement size of 7.50 x 15 import whereof was prohibited and, therefore, by importing these tyres the petitioner contravened the provisions of the Import and Export (Control) Act, 1950 read with section 60 of the Customs Act, and accordingly called upon the petitioner to show cause why action should not be taken against him for the alleged violations. The petitioner in reply to the above notice contended that the tyres imported by it were not the replacement size of 7.50 x 14 but were the original size itself and since the relevant import policy and the import licence issued to petitioner did not restrict or prohibit the import of these tyres it did not commit any violation of law by importing them. Upon receipt of the above reply of petitioner, respondent No, 3 issued an amended show-cause notice to petitioner in March, 1973 pointing out that the mention of the tyres size 7.50x 15 in his notice, dated 25-1-1973 was through inadvertance and that the tyres imported by the petitioner were in fact the replacement size of 7.50 X 14, import whereof was prohibited and, therefore, the petitioner committed breach of provisions of both Import and Export (Control) Act and Customs Act. The petitioner replied the 2nd show-cause notice also on the same lines on which the 1st show-cause notice dated 25-1-1973 was replied. However, respondent No, 3 did not accept the explanation of petitioner and ordered confiscation of goods under section 156 (9) of the Customs Act read with section 3 (3) of the Import and Export (Control) Act, 1950. The petitioner was however, given the option to obtain release of goods upon payment of a fine of Rs, 15,000 in lieu of confiscation, under section 181 of the Customs Act, 1969. The petitioner paid the fine demanded by respondent No, 3 and obtained release of goods. Against the above order of respondent No, 3 the petitioner filed an appeal and then a revision under the provisions of Customs Act, 1969 but without any success. He therefore, fixed the present petition challenging the orders of Customs Authorities (respondents Nos. 1 to 3).
2. ' Mr. Khurshid Anwar Shaikh, the learned counsel for the petitioner contended before us that the import licences issued to the petitioner show that they were valid for import of "tyres and tubes of all sorts, N.O. S. Excluding factory rejects and the following sizes : 40/3 (IV) as per Serial No, 303 of Annexure "I" of S.R.O. No, 54 (1)/72 dated 15-5-1972". It is contended on the basis of above entry in the Import Licence issued to petitioner that the import of tyres 7.00 x 14 did not amount to any contravention of law. It is urged by the learned counsel that those sizes of tyres import whereof was prohibited under the Import Policy for the period 1972-73, were specifically mentioned at Serial No, 303 of Annexure "I" to the import policy at page 131 of the Gazette and since size 7.00 x 14 is not mentioned therein, the conclusion of the respondents that the import of these tyres by the petitioner amounted to contravention of the Import and Export (Control) Act, 1950 and the Customs Act, 1969 was illegal and without lawful authority. It is also contended that the respondents while holding that the tyres imported by the petitioner were a replacement size of 7.50 x 14, gave no reason or basis for their conclusions and simply referred to a subsequent notification issued by Government whereby import of replacement sizes of tyres mentioned at Serial No, 303 of Import Policy was prohibited. It is urged by the learned counsel that the subsequent S.R.O. No, 443 (1)/72, dated 29th June, 1912 issued under section 3 (I) of the Import and Export (Control) Act, 1950 by the Government and relied upon by the respondent in support of their conclusions, also made no mention of the size imported by the petitioner but only prohibited import of replacement size of the tyres mentioned at Serial No, 303 of the Import Policy only. Alternatively it is urged that the above S.R.O. Is ultra vires of the Act as under the relevant provision of law the restriction or prohibition imposed by the Government should be specifically mentioned with reference to full particular of item sought to be restricted or prohibited from importation.
3. ' The learned counsel contended that the expression "replacement of the size" used in the S R. O. Is quite vague and is capable of being misinterpreted by the authorities concerned and, therefore, by use of such vague expression it could not be spelt out that the import of any particular size of tyres was prohibited by the Government. It is also contended that although the Import Licence was issued to the petitioner after the coming into force of S.R.O. 2143 (0/72, dated 29-6-1972 but it contained no reference to this S. R.O. And only referred to the original S.R.O. Under which the Import Policy was issued and, therefore, it is urged that the subsequent S.R.O. Dated 29-6-1972 was not applicable to the petitioner. On merits the learned counsel contended that the internationally accepted literature on the manufacture of tyres and tubes which was produced before the respondents and which they did not refer in their impugned orders show that the two sizes namely 7.00 x 14 and 7.50 x 14 are two different and original sizes and are not the replacement of each other. The learned counsel for the respondents on the other hand contended before us that whether the tyres imported by the petitioner was a replacement size or not, could be determined by the Customs Authorities alone and any determination made by them in this regard, however erroneous, it may be cannot be interfered with by this Court in exercise of its jurisdiction under Article 199 of the Constitution. It is contended that where an authority had the jurisdiction to determine a question of fact under law, it may decide the same rightly or wrongly, and the mere fact that the decision is wrong or erroneous is no ground to interfere with such a decision under Article 199 of the Constitution. It is also contended by the learned counsel for the respondents that the subsequent notification issued by the authorities on 29th June, 1972 banning import of replacement sizes of the tyres was intra vires of the Act and did not suffer from any defect of jurisdictional character. We have carefully considered the contentions of the learned counsel for the parties and after examining the same we are of the view that this petition must succeed.
4. The import licences for import of tyres were issued to the petitioner on 31st August, 1972 after amendment of the original import policy for the period 19 2-73 by notification, dated 29th June, 1972. Therefore on the date the import licences were issued to the petitioner the original Import Policy, dated 15th May, 1972, stood amended to the extent mentioned in the notification, dated 29th June, 1972. Accordingly, in our opinion, the import of tyres permitted under the original import policy for the period 1972-73 was subject to the limitation mentioned in the subsequent notification, dated 29th June, 1972. The fact that there was no mention of the subsequent notification, dated 29.6-1972 on the import licences issued to the petitioner was of no significance and could not affect the operation of the said notification. We are also unable to agree with the learned counsel for the petitioner that the subsequent notification, dated 29th June, 1972 was ultra vires of section 3 (I) of the Import and Export (Control) Act, 1950. The learned counsel for the respondents rightly pointed out that the tyres sizes which were prohibited from being imported under the Import Policy for the period 1972-73 were specifically mentioned at Serial No, 303 of the Annexure "I" to the policy and the subsequent notification dated 29-6-1972 which only provided/ that replacement sizes of those tyres were also prohibited for import did not suffer from any defect. We are, therefore, of the view that the notification, dated 29th June, 1972 did not suffer from any defect as pointed out by the learned counsel. We, however, agree with the learned counsel for the petitioner that the authorities while holding that the tyres imported by the petitioner were the replacement sizes of 7.50 x 14 acted without jurisdiction as their conclusion were neither based on any material nor no any reasoning.
5. We have carefully considered the orders passed by the respondents 1 to 3 in the case and we find that the whole basis of their conclusion that the tyres imported by the petitioner were the replacement size of 7.50 x 14 is the notification, dated 29th June, 1972 and the clarification issued by Ministry o Commerce that the notification, dated 29-6-1972 was only an interpretation and clarification of the Import Policy and not the amendment thereof. W are unable to understand how on the basis of notification, dated 29-6-197 which prohibited import of replacement sizes of tyres mentioned at Sena No, 303 of Annexure "1" of the Import Policy, it could be held that tyres 51 7.00 x 14 is the replacement size of 7.50 x 14. In our view whether the tyres imported by the petitioner were the replacement size of 7.50 x 14 or not could only be determined with reference to the technical details of the two sizes of B tyres. No doubt, the determination of the point whether the tyres imported by the petitioner were a replacement size of 7.50 14 is a question of face which normally is to be left to be determined by the authorities who are charged with the function of determination of contravention of Import and Export (Control) Act and the Customs Act and collection of customs duty thereupon but where such determination by the authorities is based on n evidence at all or is arbitrary in nature, this Court can always interfere with such conclusions of authorities especially in cases where as a result of suc arbitrary determination a person would be liable to pay a higher rate of duty or would be exposed to penal consequences under the law. We looked int the counter- affidavit and the parawise comments filed by respondents 1 to 3 in this case to find out if the respondents had disclosed the material considered by them while holding that tyres imported by the petitioner were the replacement size of 7.50 x 14 but we found none. We also enquired from the learned counsel for the respondents if he was in a position to place before us the material on the basis of which the respondents came to the conclusion that the tyres imported by the petitioner was the replacement size of 7.50 x 1 and for that purpose we granted him two adjournments but he was unable to place any such material before us which could support the conclusion of respondents. He, however, placed before us during arguments a cyclostyle statement alleged to have been issued by the General Tyres and Rubbe Company Limited, showing the manufacture of tyres in Pakistan, and attempted to show that the tyres imported by the petitioner was a replacement of size 7.50 x 14, but when we asked the learned counsel to show us, either from his own file or from the record before us, that this document w ever taken consideration by any of the respondents while holding that the tyres imported by the petitioner was a replacement size, he was unable t demonstrate the same. The learned counsel for the petitioner on the other band placed before us the printed literature on manufacture of Car tyres issued by Bridgstone, and internationally known manufacturer of tyres entitled "Data Book of Passage Car Tyres". According to the specification of different sizes of tyres given in this Booklet pages 40 and 41 the two is namely 7.00 x 14 and 7.50 x 14 differ from each other in several respect in technical details and, therefore, they could not possibly be treated as the replacement of one another. We quote here for the sake of convenience the technical details of the two sizes of tyres which are as follows :- {{TABLE}} Inch mm Inch mm Inch mm SK HS (Cont'd)
6. 700-14 4 5 26.4 670 7.1 181 12.1 308 808 750-14 4 54 27.1 689 7.7 195 12.4 314 788 {{TABLE}} In the light of the above declaration we are of the view that the orders o respondents I to 3 holding that the tyres imported by the petitioner were the replacement size of 7.50 x 14 is an arbitrary order and based on no evidence. We, accordingly declare the orders dated 21-3-1975, 18-3-1974 and 6- 7-197 passed by respondents 1 to 3 respectively as orders without jurisdiction an lawful authority.
7. We will, however, make no order as to costs in the circumstances of the case.
8. ' Before parting with the case we may mention here that the learned counsel for the respondents 1 to 3 made a request before us that in the circumstances of the case we may direct the Customs Authorities to redetermine the question whether the tyres imported by the petitioner were the replacement size of 7.50 x 14 or not in the light of such evidence as may be available now in this regard but we are not inclined to pass such an order as the consignment of tyres was imported about 10 years back and in spite of opportunity being given to respondents they failed to place before us the file and papers relating to adjudication proceedings.