MIAN BURHANUDDIN KHAN, J.-- Leave was granted in Civil Petition for Special leave to appeal No. K/85/1972 (Civil Appeal K/9/75) by this Court per order dated 12-10-1973 against constitutional petition No. K/85 of 1972 filed to challenge to orders of the Collector of Customs and the Board of Revenue, passed respectively on 22-7-1965 and 11-10-1967 on the grounds that the appellants' engaged in the business of selling glass sheets, were issued import licence under the Export Bonus Scheme for importing goods of certain specified- description in accordance with item No. 35 of Public Notice No. 2 (38)
64. E.P. 17 dated 21-7-1964 under section 3 (1) of the Imports & Exports Control Act, 1950. The appellants indented goods which did not comply with the description given, in the import licences so far as weight, thickness and value are concerned. The Customs authorities, therefore, confiscated goods and imposed a fine in lieu of confiscation.
2. Leave was granted to consider the question presumably because one of the Judges of this Court had himself expressed dissenting view on the Dacca decision in Alok Kumar Mitra v. The State with regard to the appropriate provisions of the Sea Customs Act under which non-compliance with the description given under the import licences could be dealt with. It was directed that appeal arising out of this petition (x/85/72) will be heard alongwith the appeals out of CPLAs Nos. K/4 and K/5 of 1973 as same question of law is involved in them.
3. Learned counsel for the appellants has raised the following points:
(a) That the learned Division Bench of the High Court failed to appreciate that the pause of action for both the imported goods were separate and distinct and there were different shipping documents and so also the orders were also passed separately
(b) That the learned Bench also tailed to appreciate that the order of each lot, has been separately appealed and separate orders were passed by the respondents and as such there is a separate cause of action, against each order passed by the respondents (c)That the learned Judges failed to appreciate that there is no res-judicata in this case as the points raised in this case are more or less, different from that of the previous case
(d) That the learned Bench also erred in not giving the findings on merits of the case and thereby failed to appreciate that there is no restriction with regard to the goods imported under Bonus Scheme
(e) That the learned Bench tailed to give any finding about Entry No. 35 of Public Notice No. 2 (38)
64. F.P. 17 dated 21-7-1964 read with section 3(1) of the Imports & Exports (Control) Act, 1950
(f) That Entry No. 35 of the Public Notice No. 2(32)
64. E.P. 17 dated 21-7-1964 so far as it excludes sheets/plate glass of a particular value in ultra vires of the provisions of section 3 (i) of the Imports & Exports (Control) Act, 1950. This subtraction does not envisage restriction on the basis of value
(g) That the learned High Court Bench erred in not giving finding about the interpretation of section 167 (8) (a) and even on the basis of the view taken by the respondents, the appellants case fell under section 167 (8) (a) of the Sea Customs Act and not under section 167 (8) (b) of the said Act.
4. The appellants are the registered partnership firm dealing in glass sheets and glass plates etc. They obtained import licence under the Export Bonus Scheme for the import of sheet and plate glasses. The specific description of goods given in the import licence were as follows: Sheet and plate glass (including mirror sheet levelled or plain) excluding sheet/plate glass of the C&F less than specified below:- ...............................................------------------------------------.IV/2-1/2
(2) mm (16-18 oz)Rs. 0.30 per sq. Ft. s
(3) mm (24-26 oz)0.45
(4) mm (22oz)0.68
(5) to 6 mm (7 x 32 inches)1.10 These licences were issued to the appellants in January February, March and April, 1965. The description of goods, given in the licences was as per item No. 35 of Government of Pakistan, Ministry of Commerce Public Notice No. 2 (38)
64. E.P. 17 dated 21-7-1964 published in the Gazette of Pakistan Extra-ordinary, Rawalpindi dated 21-7-1964, issued under the Export Bonus Scheme. This entry in the aforesaid Public Notice was in pursuance of Government policy as explained in the Ministry of Commerce Public Notice No. 7 (27)
64. Tar. II, dated 5-10-1965 published in the Gazette of Pakistan Extra-ordinary. Rawalpindi the 5th October, 1965 reproduced below: "No. 7 (27)
64. Tar. II--The Government of Pakistan have considered the Report of the Tariff Commission for grant of protection of Sheet and plate glass industry. The measure of protection as recommended by the Commission and the Government's decision /observations thereon are listed below:- Recommendation of the Decision /Observations Tariff Commission of the Government
1. The ban on import of sheet1. In pursuance of the Govern-- glass that has been imposedment decision to import commo-- since January, June, 1962 dities as far as possible from shipping period should be only one source of finance, the removed, but the annual import of plate glass has been commercial ceilings for placed exclusive under Bonus imports should be fixed @ Rs. Subject to certain price restric t lakhs and Rs.10 lakhs fortion except that the mirror East and West Pakistan res-manufacturing industry has been pectively in order to absorb permitted to import the following the local production to help varieties of sheet and plate glass the local industry further and provided that their C & F prices discourage the import of poorare not lower than these speci-- quality glass imports should fied against. be restricted galas sheets of C & F value above the following. per 100 sq.Ft. Per sq.Ft.
2 mm (16-18oz) Rs.302 mm (16-18oz)Re.0.30 3 mm (24-26oz) Rs.453 mm (24-26oz)Re.0.45 4 mm (32oz) Rs.684 mm (32oz)Re.0.68 5 to 6 mm (7/32 inch) Rs.1.10 Note: The above C & F value refer to standard 70 unit inches and will be adjusted The policy applicable to mirror accordingly for other unitindustry will continue unchanged inches 5 to 6 mm (7/32 inch)all other imports of sheet/plate Rs.1.10glass will continue to take place against bonus vouchers only without any price restriction."
5. Public Notice dated 21-7-1964 issued under the Export Bonus Scheme was a Notification issued under section 3 (1) of the Imports & Exports (Control) Act, 1950 which is reproduced below: "The Central Government may, by order published in the official gazette and subject to such conditions and exceptions as may be made by or under the orders prohibit, restrict or otherwise control the import or export of goods of any specified description . . . . . ."
6. Learned counsel contended that Entry No. 35 (as reproduced above) of the Public Notice issued under the Export Bonus Scheme read with section (3) (1) of the Imports & Exports (Control) Act, 1950 would mean that only the goods of the description specified in the Notification were excluded. The sheet/plate glass of 2 mm, 3 mm and 4 mm of the given weight were specified and sheet/plate glass of 5 to 6 mm of the given size and value were specified. Sheet/plate glass between 2 mm and 3 mm as well as between 3 mm and 4 mm were not specified and were, therefore, outside the exclusion. This view is based on the provisions of section 3 (1) of the Imports & Exports (Control) Act, 1950. This view also finds support from the following decisions of the Government as contained in Public Notice and reproduced above: "The policy applicable to mirror industry will continue unchanged. All other imports of sheet/plate glass will continue to take place against Bonus Vouchers only without any price restrictions."
7. He also contended that the appellants understood Entry No. 35 in the Public Notice of the 21st July, 1964 in the sense stated above and while placing orders with their suppliers in Bulgaria, clarified as below: "Due to the restrictions imposed by our Government on the import of window glass on thickness basis, it is very important that the window glass shipped in our name should, in no case, be less than 22 mm thickness. This thickness should also be the same on the invoice. This question of thickness should be paid special attention keeping in view the restrictions imposed by the Government of Pakistan"
8. Learned counsel further contended that the goods imported by the appellants came in to lots.
The first lot arrived per s.s. "TRIBEEJI" respondent No. 1 detained the goods and issued a show cause notice on the ground that the goods had been found to fall within the range of prohibited, weight, thickness and value. He also urged as follows:
(i) "That respondent No. 1 decided that case on 14-7-1965 imposing fine in lieu of confiscation. The appellants appeal to the Central Board of Revenue and revision to the Government of Pakistan having failed, appellants filed writ petition No. 732 of 1966 which was also dismissed in limine on 11- 1-1967. Being aggrieved by the said order the appellants filed a petition for special leave to appeal No. K /45 of 1967 before this Court but per order dated 24-5-1967 leave was not granted
(ii) That second lot of goods of appellants arrived per s.s. VISHVASUKHA. This case was decided by respondent No. 1 on 22-7-1965. In this case also goods were confiscated and fine in lieu of confiscation amounting to Rs.12,000 was imposed (i.e) That the appellants filed appeal against the order of confiscation before respondent No. 2 which was dismissed vide order dated 11-10-1967
(iv) That against the aforesaid order dated 11-10-1967 Petition No. 2/1968 was filed in the High Court of Sind and Baluchistan which was dismissed per order, dated the 17th October, 1972.
(v) That appellants thereafter filed petition for special leave to appeal before this Court, and as stated above, leave was granted vide order, dated 12-10-1973
9. Perusal of the record reveals that the conclusion in the order of the Collector of Customs is that the glass sheet fall "within the range of prohibited value" as the thickness of the glass sheets varies from 2.18 to 2.5 mm and the weight from 18.1/2 to 20.5/60 oz and the price for the former is 12 and the latter 12.50 paisas per sq. Ft. Accordingly he held that the goods had been "imported in contravention of I.T.C. Restriction imposed on this particular item and therefore, they are confiscated under section 167 (8) (b) of the Sea Customs Act read with section 3 (i.e) of the Import & Export Control Act, 1950". The appellants, were however, allowed to redeem the goods on payment of fine amounting to Rs. 12,000 under section 183 of the Sea Customs Act. This conclusion was confirmed in appeal by the Central Board of Revenue for the same reason and in revision it was held that "glass sheets of all thickness ranging from 2 mm to 4 mm were banned for import" as the licence imposed a condition that nothing could be imported which was less than the specified C & F value. According to the revisional authority, the C & F price in the instant case was 12 and 12.50 paisas which was less than the specified C & F value and as such the goods were not covered by the licence. It thus upheld the view of the respondents.
10. After recording the contentions of the learned counsel the learned High Court Judges proceeded to examine the question whether the decision in earlier petition No. 732 of 1966 was operative as res judicata in the case under reference and they observed as follows: "While examining the record of petition No. 732 of 1966, which is referred to in para 8 of the petition, we noticed the judgment of the High Court and that of the Supreme Court which were not referred to us at the the of the arguments. The question which now arises for consideration is as to whether we can entertain new pleas raised in terms of para 8 of the Public Notice (Export Bonus Scheme) so as to constitute a restriction within the meaning. Of section 19 of the Sea Customs Act. While elaborating this contention, the learned counsel emphasised that para 8 no doubt laid down that the goods imported shall be subject to such controls as may be enforced in the country from the to the, yet the Central Government did not issue any notification restricting the price such as envisaged in terms of section 3 (1) of the Imports & Exports (Control) Act and, therefore, even if there was a violation of the price in terms of the relevant entry, it could not be taken notice of. In this context, he also referred to the Notification No. S.R. 575 (K)/64 dated 31st July, 1964, and to group in Schedule 1 under the heading "III List of items other than those on free list/O.G.L" where there is no entry corresponding to item No. 38 with a view to show that there was no such restriction."
11. The learned Judges also considered the case-law cited: Inayatullah and others v. Shah Muhammad & other PLD 1961 Lah. 372; Probodh Kumar Das v. Dantmara Tea Co. AIR 1940 P C 1; Mst. Sattan and others v. Group Captain Masroor Hussain PLD 1962 Lah. 151; Ali and another v. The Crown PLD 1952 FC 71; A.M. Khan Leghari v. Government of Pakistan PLD 1965 Lah. 214; Sheesagar Singh and others v. Sitaram Singh and others XXIV Indian Appeals 50; Muhammad Khalil Khan and others v. Mahbub Ali Mian & others AIR 1949 P C 78. This last cited case AIR 1949 P C 78 reflects the principle that where in essence the claim in both the suits is the same, the cause of action would be the same and, therefore, the subsequent suit would be "barred by reason of Order 11, rule 2, C.P.C." Another case Official Assignee, Bombay v. Madholat Sindhu A 1 R 1947, reiterated the principle that "a matter can never be said to be directly and substantially in issue which calls for a decision only collaterally or incidentally and it cannot be heard and finally decided if the finding on any principal issue is not necessary for the decision of the suit" and in this view of the matter repelled the applicability of section 11 C . P. C .
12. It was further observed by the learned Judges that: "Common facts are pleaded in paras 1 to 6 of the petition. Paras 7 and 8 deal with the disposal of .The first lot which arrived first in point of the while paras 9 and 10 deal with the second lot. The orders relating to the goods of the second lot have been impugned in this petition. However, nothing will turn on the shipping documents as is contended by the learned counsel for the petitioner for they relate to the goods which were imported against licences issued on the same footing as in the case of the first lot, The impugned orders give the same reason for confiscation though these were passed on different dates. The learned counsel for the petitioner was unable to draw any distinction on the merits of the to orders. As to the goods imported, except for a slight variation in thickness and weight the goods of the second lot are on the same footing. No distinction was also drawn on this ground. So far as this petition is concerned we, are in no doubt that the facts remain the same as also the reason for the confiscation which provides the cause of action In the circumstances the contention of the learned counsel for the petitioner that the cause of action- was distinct and separate is without force."
13. It was further observed by the learned Judges that out of the cases cited above, the to cases namely Sheesagar Singh and others v. Sitaram Singh and others; Official Assignee, Bombay v.
Madholal Sindhu relate to the applicability of the principle of res judicata but these are clearly distinguishable upon the reasons given in them. The learned Judges placed reliance on Mirza Muhammad Yaqub v. The Chief Settlement Commissioner and another PLD 1965 SC 254 at page 260 wherein it was held: "A petitioner is not entitled to take different pleas at different times so as to file more than one writ petition on the same facts. For a further plea the proper course would be to file a petition for review if such a petition be maintainable. The general principle of res judicata is applicable to writ petitions also."
We are in agreement with this finding of the learned Judges and in view of the finding on the question of cause of action being barred on the principle of res judicata we would not go into the other points raised by the learned counsel for the appellants. The appeal stands dismissed with costs.
M.B.A.