1. ABDUL KADIR SHAIKH, J.--This is a petition for leave to appeal from the judgment of a Division Bench of Sind High Court dated 15-10-1985 whereby while allowing a constitution petition filed by the petitioner, learned Judges mode certain observations with regard to proceedings under section 32 of the Customs Act in respect of petitioner's goods which had been earlier detained .By the Customs Authorities.
2. Facts briefly stated are that petitioner imported two consignments of goods which were sought to be cleared as "iron and steel-scrap and under P.C.T. Heading 73.03 subjected to customs duty at 70%. Petitioner paid the levy of customs duty, etc. In the sums of Rs.1,09,727 and 76,541 in respect of the two consignments but the goods were not released and were detained thereafter. It was in these circumstances that petitioner filed the constitution petition seeking to challenge the action taken by the customs Authorities regarding the detention of the goods. During the pendency of the petition, however, respondents initiated proceedings against the petitioner under section 32 of the Customs Act, but these were stayed by the High Court as an interim measure by the order dated 23-4-1985. Finally, however, the High Court took the view that the order of detention of the goods was without lawful authority, and directed release of the goods by the impugned judgment.
3. With regard to the proceedings initiated against petitioner under section 32, learned Deputy Attorney-General who appeared for the respondents before the High Court took the stand that since the action was taken under the aforesaid provision of law, the goods could not be released at that stage. On the other hand, it was urged by Mr. Khalid M. Ishaque, learned counsel who appeared for the petitioner also before the High Court that once petitioner had made the payment of customs duties, etc. As levied by the respondent and the goods were allowed to be released, these could not be detained under section 32 of the Act.
4. Learned Judges in the High Court dealt with the plea raised by Mr. Khalid Ishaque and passed the judgment in these words: "This contention has to be considered in the light of the stand taken by the respondents. They have disputed the contention of the petitioner that the actual duty has beer paid by the petitioner. The respondents were competent under section 32 of the Customs Act to assess the actual duty even where the goods have been cleared by the respondents. They are not debarred to take action under the Act. Even in those cases where the provisions of Section 168 have been violated the only consequence would be that the goods shall be returned to the persons from whose possession the goods have been seized. Adjudication proceedings under section 179 is an independent provision which could be taken by the Customs authorities. The adjudication proceedings would not be invalidated simply because goods have been returned to the person. The proceedings could be started after the principle of natural justice has been complied with by the Customs authorities.
5. However, I the Respondents have no authority to detain the goods under S. 32 of the Customs Act and in the present case they had already examined the goods and in fact cleared the goods; but after the judgment of the Court in Constitution Petition No.424 of 1983 the Respondents started fresh enquiry, therefore, while maintaining the action of the Respondents under section 32 of the Act, we declare that the detention of the Petitioner's goods was illegal and without authority. The goods have already been examined by the Respondents and they be released but the proceedings under section 32 of the Customs Act may be taken in accordance with law.
6. The petition is accepted to this extent. There will be no order as to costs."
7. The grievance of the petitioner against the impugned judgment of the High Court relates to the observations made by the High Court with regard to maintainability of action taken in respect of petitioner's goods under section 32 of the Customs Act. According to Mr. Khalid Ishaque the view of the High Court regarding the validity of the earlier proceedings in respect of the goods by virtue of action subsequently taken under section 32 of the Act is not correct and, in any case, the observations made by the High Court would affect the objections to be taken by petitioner to the fresh proceedings under section 32 of the Act.
8. This submission deserves consideration. We, therefore, grant leave to appeal. Security Rs.1,000.
9. Appeal will be heard on the present record, by consent, on 10-5-1987. It is, however, open to the parties to file additional documents, if any.