ORDER : NASIM HASSAN SHAH, J.--1 The petitioner imported 330 cases of cutch block (Katha) each weighing 50 Kg. Nett C & F Attari Amritsar, India packed in wooden cases. The said article was supplied by an Indian Company M/s. Shivanditta Mai & Co., Majith Mandi, Amritsar and U.S. Dollars 23 per case of 50 Kg. Nett C & F Attari. A consignment consisting of 15 cases of cutch block each weighing 50 Kg.
Nett C & F were, in fact, imported by the petitioner and were released by the Superintendent Land Customs, Railway Station, Lahore, vide Bill of entry No'. 425 dated 19th March, 1977.
2. Nearly one year later, the petitioner received show-cause notice dated 22nd May, 1978 from the Assistant Collector of Customs, Lahore, in which it was alleged that the consignment was short levied. The show-cause notice stated:-- "As per findings of the Valuation Branch vide U.O. Note No. 11-76/77/777, dated 4th May, 1978 the assessm ent should have been made on cutch block U.S. $ 33 per 50 Kg. Instead of U.S. $ 23. Thus, an amount of Rs. 25,755 Customs Duty, Rs. 11,211 Sales Tax has been short levied."
3. The petitioner in response to the said show-cause notice requested the Assistant Collector of Customs to supply him with the evidence on the basis of which the short 'levy was alleged in order to enable him to submit a proper reply- There was no answer given to this request. However, the matter was heard by the Deputy Collector of Customs, Central Excise and Land Customs, Lahore, who, by his order dated 23-7-1978, ordered the petitioner to pay the short levy of customs duty amounting to Rs. 37,343 and in addition thereto imposed a personal penalty of Rs. 30,000. The reasons for so doing appear from the following extract from his order:- "The Advocate pleaded that the value declared by them was in conformity with the provision of the law. To substantiate his argument, he showed copies of the correspondence exchanged between the Importer and the Exporter. The Valuation Officer rebutted the defence argument and produced a copy of the price list dated 17th July, 1976 of M/s. Notiwala and Son (Private) Ltd. Exporter, 91, Muhammad Ali Road, Bombay according to which the quoted price of Cutch Block during that period was U.S. Dollars 36 per SO Kg. He also during that while pointing out the aspect of under- valuation, the Valuation Officer deducted the freight from Bombay to Amritsar.
After hearing the defence as well as the prosecution and going through the case record, I find that the goods were deliberately under-valued. The party is, therefore, ordered to pay the short levied of Customs duty etc. Amounting to Rs. 37,343 (Rupees thirty seven thousand, three hundred and forty three only), In addition to the above I also impose a personal penalty of Rs. 30,000 (Rupees thirty thousand only)" on the party under section 156(1) clause 14 of the Customs Act, 1969.
4. Aggrieved by the above order, the petitioner preferred an appeal before the Director of Vigilance Wing, Customs House, Lahore, who, by his order dated 13th November, 1980, maintained "the order of the Deputy Collector of Customs to the extent of payment of short levy of Customs Duty of Rs.
37,343 but set aside the order in so far as the personal penalty amounting to Rs. 30,000 was concerned. The following extract from his order may advantageously be reproduced below:-- "The evidence on which reliance has been placed by the department is substantial to justify enhancement of value. Consequently, the orders of the Deputy Collector requiring the appellants to pay differential Customs Duty etc. Amounting to Rs. 37,343 are held to be correct. However, notwithstanding the competence of the department to enhance the value the circumstance of the case (which cannot indicate that the value was deflated deliberately and with mala fide intention) do not justify the imposition of penalty under clause 14 of the table appended to sub-section (1) of section 156 of the Customs Act, 1969.
5. The petitioner still feeling dissatisfied filed a revision before the Central Board of Revenue, Government of Pakistan but the same was dismissed vide order dated 24th October, 1982. They then moved the Lahore High Court by a Constitutional Petition, but without any success. The petitioner, therefore, has moved this petition for leave to appeal.
6. We have heard the learned counsel for the petitioner as well as Malikm Muhammad Qayum, the learned Deputy Attorney-General, and are of the opinion that this case requires further consideration to consider:-
(a) Whether any reliable basis existed with the respondent department to insist that the price of cutch block in india was U.S. Dollars 33 per 50 Kg. And not U.S. $ 23 per 50 Kg. As asserted by the petitioner and thereby ignore the documentary evidence produced bv the petitioner in support of the rate/price at which the consignment was allegedly imported by him? and
(b) Whether the observations made by the Director, Vigilance Wing, Lahore, in his order dated 29th November, 1980 while accepting the appeal of the petitioner to the extent of remitting the imposition of penalty, holding that the facts and circumstances of the case did not indicate that the value was deflated deliberately by the petitioner or that any mala fide intention could be read into his conduct did not have the effect of bringing the case of the petitioner within the purview of sub-section (3) of section 32 of the Customs Act, 1969, whereunder a notice to show cause against the short levy of customs duty can be issued within 4 months only. Hence the notice issued in this case, which was issued nearly one year after the event, was illegal?
7. Security for costs of the respondents shall be furnished in the sum of Rs. 1,000.
8. The hearing of the appeal shall be expedited to the extent possible.