' AJMAL MIAN, J.--By this common judgment, we intend to dispose of the above three petitions as common point of law is involved. The brief facts leading to the filing of the above petitions are as follows:- ' C.P. No. D-276/78.-- The petitioner imported a vessel by the name "GLOBAL PRINCE" for scrapping. The petitioner presented a bill of entry on 17-11-1977, whereas the manifest of the above vessel was filed by the master of the vessel on 20-11-1977.
' C.P. No. D-277/78.-- In this petition, the petitioner had imported a vessel, namely 'GULF ENTERPRISE' for scrapping. The master of the vessel filed manifest on 7-12-1977, whereas the petitioner filed a bill of entry on 22-12-1977.
' C.P. No. D-278/78.-- The petitioner imported a vessel by the name of 'GULF SUCCESS' for scrapping. The master of the vessel filed a manifest on 7-12-1977, whereas the petitioner filed bill of entry on 23-12-1977.
2. In all the above three petitions, the grievance of the petitioners is that the respondent instead of levying customs duty at the rate prevalent on the date of filing of either manifest or the relevant bill of entry had assessed and demanded the customs duty including regularity duty prevalent subsequent to 1-1-1978. Since the respondent was insisting upon the above demand, the petitioners filed the present petitions and got the vessels cleared on payment of the customs duty as demanded by the respondent including regularity duty under protest.
' It may be observed that no counter-affidavit to the above petitions has been filed. The relevant dates are not disputed except counsel for the respondent stated that the bills of entries filed by the petitioners were incomplete.
3. In support of the above petitions Mr. Khurshid Anwar, learned counsel for the petitioners has vehemently urged that by virtue of section 30 read with section 79 of the Customs Act, 1969 the relevant date for the purpose of determining the rate of customs duty is either the date of filing of manifest by the master of a vessel or the date of presentation of a bill of entry.
' On the other hand, it has been contended by Mr. Akram Zubairi that since the bills of entries filed by the petitioners were incomplete and were completed after the levy of the regular duty with effect from 1-1-1978, the petitioners were liable to pay the above regular duty.
4. In order to appreciate the respective contentions of the learned counsel for the parties, it may be appropriate to reproduce hereinbelow sections 30 and 79 of the Customs Act, which read as follows:- "Section 30.--Date.for determination of 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;
(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 on which the manifest of the conveyance is delivered: ' Provided further, that, in respect of goods for the clearance of which a bill of entry from 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 applicable shall be the value and rate of duty applicable on the date on which the duty is actually paid.
' Section 79--Entry for home-consumption or warehousing.--(1) The owner of any imported goods shall make entry of such goods for home-consumption or warehousing or for any other approved purpose by delivering to the appropriate officer a bill of entry thereof in such form and manner and containing such particulars as the Board may direct: ' Provided that, if the owner makes and subscribes a declaration before the appropriate officer to the effect that he is unable for want of full information to make a complete entry of any goods, then the said officer shall permit him, previous to the entry thereof, to examine the goods in the presence of an officer of customs or to deposit such goods in a public warehouse appointed under section 12 without warehousing the same pending the production of such information.
(2) A bill of entry under subsection (1) may be presented at any time after the delivery of the manifest: Provided that the appropriate officer may, in any special circumstances, permit a bill of entry to be presented before the delivery of the manifest.
(3) If an officer not below the rank of Deputy Collector of Customs is satisfied that the rate of custom duty is not adversely affected and that there was no intention to defraud, he may in exceptional circumstances and for reasons to be recorded in writing permit substitution of a bill of entry for home-consumption for a bill of entry for warehousing or vice versa.
' Calculation of duty.--If the bill of entry was accepted before the delivery of manifest, under section 30 the date for determination of rate of import duty is the date on which import manifest was delivered."
' It may be noticed that under section 30 inter alia it has been provided that if the goods are cleared for home- consumption under section 79 the rate of duty will be the rate obtaining on the date of presentation of a Bill of entry. However, proviso to the above section 30 lays down that if a bill of entry has been presented in advance of the arrival of the vessel by which the goods have been imported, the relevant date for the purpose of the above section shall be the date on which a manifest of conveyance is delivered. Whereas section 79 contemplates inter alia presentation of an incomplete bill of entry. It also empowers the appropriate officer to allow the presentation of a bill of entry prior to the delivery of a manifest by the master of the vessel. It further empowers the substitution of a bill of entry in terms of subsection (3) of section 79.
5. Mr. Khurshid Anwar in support of the above contention has referred to the case of Amreliwala Hardware Industries, Karachi v. Collector of Customs and another PLD 1976 Kar. 196, the case of Millwala Sons Ltd., and another v. Collector of Customs Karachi and 2 others PLJ 1979 Kar. 124, the case of Messrs Link Engineering Company Ltd. v. Government of Pakistan through Central Board of Revenue, Islamabad and 2 others PLD 1980 Lah. 469 and the case of Dada Steel Mills v. Collector of Customs and another PLD 1984 Kar.
94.
' In the above first case of a D.B. of this Court, the facts were that the master of the vessel delivered manifest to the Customs Authorities on 15-8-1975, a second manifest was delivered on 27-8-1975. The point in issue before the D.B. was, whether the rate of the customs duty obtaining on 15-8-1975 was the relevant date or the rate of duty prevalent on 27-8-1975 was the relevant rate of duty. It was held that the duty was payable at the rate obtaining on the above date of filing of the first manifest. It may be observed that in the above case, it was contended by the department that the first manifest was defective and, therefore, the date of filing of the first manifest could not have been made the basis for computing the amount of customs duty. However, this contention was repelled by the Division Bench. It was also observed that the Customs Authorities did not return the first manifest to the master of the vessel on the ground that it was defective.
' In the second case again a Division Bench of this Court considered the question, which was the date for the purpose of levying Customs duty. In the above case the petitioner had presented the bill of entry by 6th June, 1975, whereas the manifest was delivered by the master of the vessel on 7-6-1975. On the latter date, the Government imposed additional regularity duty on the vessels. It was inter alia contended by the petitioner that for the purpose of determining the rate of customs duty, the date of presentation of the bill of entry i.e. 6th June, 1975 was the relevant date. However, the Division Bench held that in terms of the section 30, the relevant date was the date of delivery of manifest, i.e. 7th June, 1975. In the 3rd case the learned Single Judge 'of the Lahore High Court held that the rate of duty for the goods imported by sea though intended to be transmitted to Lahore was the date of the presentation of the bill of entry. In the above case the bill of entry was filed after the filing of the manifest. In the last case this Division Bench while considering the question, whether the importer was liable to pay the customs duty at the rate obtaining on the date of delivery of the first manifest or the rate prevalent on the date of delivery of the second manifest by the master of the vessel, it was held that the date of delivery of the first manifest was the determining factor for the purpose of rate of customs duty under section 30 read with section 79 of the Customs Act.
6. The respondents have not brought any thing on record to indicate that either the manifests delivered by the masters of the vessels or the bills of entries presented by the three petitioners were in any way defective.
However, it was submitted by Mr. Akram Zubairi as observed hereinabove that the bills of entries presented by the petitioners were incomplete though the above statement is not supported by any document on record. It may be observed that the factual position is that the respondent did not return the above bills of entries to the petitioners on the ground that they were incomplete or defective. In the above first petition the date of presentation of bill of entry is prior to the date of filing of the manifest. Whereas, in the remaining two cases, the dates of presentation of the bills of entries are subsequent to the date of delivery of the manifests by the masters of the vessels. In any event both the above dates in the above three petitions are prior in time to 1-1- 1978 i.e. the date on which additional regularity duty was imposed. The ratio decidendi of the above-cited cases on all fours is applicable to the instant cases.
7. We would, therefore, allow the above petitions and declare that the petitioners were liable to pay customs duty at the rate obtaining either on the date of delivery of the manifest by the master of the vessel concerned or the rate prevalant on the date of presentation of A the bills of entries, whichever is subsequent. We further declare that any demand contrary to this is illegal and of without lawful authority and of no legal effect. The respondents are also directed to refund the excess amounts recovered from the petitioners.
' In the circumstances of the case, there will be no order as to costs.
Writ issued.