FAKHRUDDIN G. IBRAHIM, J.---On 18-1-1962 the petitioner received a Memorandum from the Assistant Collector of Customs, Postal Appraising Branch, informing the petitioner that a parcel said to contain loose beads of the declared value of Rs. 1,775 addressed to the petitioner had been received from Hong Kong and the petitioner was directed to produce import permit from the Chief Controller of Imports and Exports. As no reply was received from the petitioner, the Assistant Collector of Customs by a cyclostyled letter dated 6-3-1962 informed the petitioner that as import licence/permit/evidence of free samples was required for the importation of loose beads in accordance with the import Trade Control Restrictions imposed under section 3 (Iii) of the Imports Exports (Control) Order, 1950, which had not yet been produced and the goods therefore, attracted the provisions under section 167(8) of the Sea Customs Act. The petitioners were called upon to give reasons for not producing an import permit within 10 days failing which the Assistant Collector of Customs threatened action under section 167 (8) of the Sea Customs Act. The petitioner in this letter was further informed that he was at liberty to supplement his written statement with a personal hearing and in case the petitioner wished to avail of this option a date of hearing may be confirmed by the petitioner on telephone or in writing. According to the petitioner a letter dated 24th March 1962 was addressed in reply to the Assistant Collector of Customs by which he informed the Collector that the petitioner had applied to the C. C. I. & E. For necessary import permit and as soon as it is received by him he will arrange to clear the goods without any delay. The receipt of this letter is, however, denied by the respondents. The Assistant Collector of Customs by his order dated 28-3-1962 (despatched on 2-4-1962) held that the petitioner bad failed to reply to the show cause Memo. Dated 6.3-1962 and bad also not produced the required permit and, therefore, proceeded to confiscate the goods under section 167 (8) of the Sea Customs Act for Contra--vention of section 3 (iii) of Imports and Exports (Control) Order, 1950.
2. The petitioners went in appeal before the Collector of Customs which was lodged in. The Customs House on 8-3-1963 i.e., after the expiry of statutory period of three months required under section 183 of the Sea Customs Act. In the Memo of Appeal the petitioner stated that the goods in question were shipped by him on consignment basis to Hong Kong on 10th April 1961 but the consignee did not approve of the quality of the goods and the price and so it was sent back to Pakistan in January 1962; that the Customs Authority demanded an import permit but it was not Issued to them by the C. C.
1. And E, in spite of their best efforts until 16th May 1963, the original of which was enclosed with the Memo of Appeal and, accordingly a request was made to set aside the order of the Assistant Collector dated 28-3-1962. The Collector of Customs heard the parties and by his order dated 1-7-1963 dismissed the appeal on the short ground that the appeal was barred by time. Against this order the petitioner filed an appeal under section 188 of the Sea Customs Act but it would appear that this appeal was treated as a revision to the Central Government under section 191 of the said Act as the order was not appealable to Central Board of Revenue. The Central Government by its order dated 18-2-1964 declined to interfere on the ground that the Collector of Customs had rightly dismissed the appeal, as time-barred and the argument that the petitioner was awaiting the grant of import permit was repelled by stating that it was still open to the petitioner to file an appeal in time without a permit and pray for time to produce the evidence later.
3. A further application was made to "the Chief Customs Authority" on 9-3-1964 under section 190 of the said Act which was, however, rejected on 16th March 1964 on the ground that the case had been finally decided by the Government of Pakistan under section 191 of the Sea Customs Act and as such the reopening of the same by the Chief Customs Authority i.e. The Central Board of Revenue, an authority subordinate to the Government did not arise.
4. Mr. Nasim Farooqi, the learned counsel for the petitioner has contended before us that the order dated 28-3-1962 made by the Assistant Collector of Customs is without lawful authority in-- asmuch as the same was made without giving the petitioner an opportunity of being heard. The contention is factually incorrect inasmu ch as the petitioner did receive a show-cause notice dated 6-3-1962 by which he was called upon to give his written explanation and also intimate the Assistant Collector of Customs if a personal hearing was desired. According to the petitioner a reply was made to the show-cause notice, being the reply dated 24th March 1962, but the respondents do not admit the receipt of this letter. We gave Mr. Nasim Farooqi more than one opportunity to prove that the letter dated 24-3-1962 was delivered to the Assistant Collector of Customs but he failed to produce any evidence. It may be noted that no reference was made to this letter in the Memo of Appeal filed before the Collector of Customs and that this letter was for the first time referred to in the what was described as appeal before the Central Board of Revenue.
It would, therefore, follow that in spite of a show-cause notice no reply was made by the petitioner and in view of the admitted position before us that the import of the goods in question required an import permit which was neither produced before the Assistant Collector of Customs nor time sought for its production, the Assistant Collector of Customs was perfectly justified in making the order dated 28-3-1962 by which he confiscated the consignment.
5. Again the petitioner did not file any appeal against this order until after he had obtained the import permit from the C. C.
1. And E. The period of appeal under section 188 of the Sea Customs Act was 90 days while the appeal was not filed for nearly a year. Technically speaking, therefore, and notwithstand--ing the production of the import permit before the Appellate Authority, the Appellate Authority cannot be said to have acted without lawful authority in dismissing the appeal which was admittedly barred by time. Equally the Revisional Authority could have interfered with the appellate order only if it was otherwise than in accordance with law.
6. Mr. Nasim Farooqi next contended that in any event the Chief Customs Authority, namely, the Central Board of Revenue, was not justified in rejecting his client's application dated 7-3-1964 under section 190 of the Sea Customs Act for remitting the order of confiscation in view of the import permit obtained by his clients. The Chief Customs Authority by its order dated 16-3-1964 declined to interfere on the ground that it was an authority subordinate to the Government of Pakistan anal that the Government of Pakistan having by its order dated 18-2-1964 finally decided the matter under section 191 of the Sea Customs Act it was not open to the Chief Customs authority to reopen the matter. The learned counsel did not enlarge upon this aspect of the matter and in fact, it would appear from the petitioner's application under section 190 of the said Act that the attack was exclusively on the legality of the orders made by the Assistant Collector, by the Collector in appeal and by the Central Board of Revenue (in fact by the Central Government) In revision. Be that it may, I have examined the said section 190 in its proper context and have come to the conclusion that the Chief Customs Authority was in error in assuming that its powers under section 190 of the said Act were of a supervisory character. When the Chief Customs Authority Interferes under this section it does not set aside an order made by an officer of the Customs under the Act or an order made In appeal under section 188 or in revision under section 191 of the said Act, but notwithstanding the validity of orders made, the Chief Customs Authority is empowered to remit any penalty or confiscation adjudged under the Act. The exercise of power under this section pre-supposes that the order, in respect of which remission is sought, is otherwise in accordance with law and may even be final under section 188 of the said Act, but that there are In the opinion of the Chief Customs authority circumstances the consideration of which may pursuade the Chief Customs Authority to remove the rigours of an otherwise valid order by either remitting the penalty or confiscation in whole or in part or with the consent of the owner of the goods ordered to be confiscated, commute the order of confiscation to a penalty not exceeding the value of such goods. In the present case the Chief Customs Authority declined to exercise its power under section 190 on the ground that the order of confiscation made by the Assistant Collector of Customs had been upheld by the Central Government In a revision and since the Central Government was a superior authority, the Chief Customs Authority had no power to reopen the matter. The Chief Customs Authority was clearly In error in assuming that it was being called upon by this applica--petition to sit in appeal or revision against the order of the Central Government under section 191 of the said Act. No doubt, the order under section 191 made by the Central Government was a final order but notwithstanding its finality, to was, as aforesaid, still open to the Chief Customs Authority to consider whether there were circumstances which in its opinion warranted the remission of the order of confiscation or with the consent of the owner of the goods ordered to be confiscated, commute the order of confiscation to a penalty not exceeding the value of B such goods. This jurisdiction the Chief Customs Authority clearly failed to exercise on the incorrect assumption that it had no power to do so in view of the rejection of the revision by the, Central Government under section 191 of the said Act. In the circumstances of the present case the Chief Customs Authority was bound to consider whether the remission sought be granted either in whole or in part as the petitioner had In fact produced an import permit, which import permit had to be obtained from another authority. I would not like to say anything more inas--much as it is for the Chief Customs Authority to consider these and OHM circumstances and arrive at its own independent opinion. The proper order in this case. In my opinion, would be to set aside the order dated 16-3-1964 made by the Central Board of Revenue, the Chief Customs authority under section 190 of the said Act and direct the Central Board of Revenue to hear the said application on merits after giving notice to the parties.
7. Since the petition is partly allowed there will be no order as to costs.
TUFAIL ALI A. RAHMAN, C. J.---I agree.