This is a Constitutional petition filed by Messrs M.G. Traders, Lahore, petitioner, calling in question the order of the Deputy Collector of Customs, Lahore, dated 4-5-1985, that of the Collector of Customs (Appeals) Lahore, dated 27-1-1986 and that of the Additional Secretary, Ministry of Finance, dated 28-4-1987.
2. The brief facts of the case are that Messrs M.G. Traders, petitioner, imported 100 metric tons of Stearic Acid Rubber trade from Singapore against licence No. A-944177 issued under serial Nos. 1 to 6 of the free List of import Policy Order of 1984. The petitioner established a letter of credit on 3-2- 1985.The goods were shipped in early, 1985. Bill of entry for home clearance was filed at Lahore on 26-3-1985) through fareed Enterprises Customs Clearing Agents, Lahore. On inspection of the goods, the Customs found that the same was P.V.C. (Poly Venyl Choloride) Resin. Accordingly, on 24-4-1985 the Deputy Collector of Customs, Lahore, issued notice to the petitioner to show cause why action should not be taken against it under sections 156(1) 9 and 14 of the Customs Act, 1969.
The petitioner submitted its reply to the said show-cause notice on 2-5-1985, where it took up the position that it was not aware how the imported pods had been held to be PVC Resin and that it would check up the confusion with its suppliers, if it was supplied with the copies of the laboratory reports. Thepetitioner also observed that as the process of examination of the goods and taking of tests, etc. Had delayed release of the consignment, resulting in the blocking of their business capital, it requested the Customs Authorities to take a lenient view of the case and adjudicate the case and save it from loss. It also requested that personal hearing may be given to it before any final decision wastaken. The Deputy Collector of Customs accordingly took up the case for adjudication on 4-5-1985. Mr. Sultan Mahmood, Advocate for the petitioner, pleaded guilty on behalf of the importer before the Deputy Collector of Customs. Accordingly, the learned Deputy Collector of Customs recorded in his order that as the learned counsel had not contested the laboratory tests results, the charges framed against the petitioner in the show-cause notice stood established. The Deputy Collector of Customs thereupon found that the petitioner had mis declared the description of the goods, which act attracted the mischief of section 32 of the Customs Act, 1969, and he, therefore, ordered confiscation of the goods under sections 156(1) 9 and 14 of the Customs Act, 1969, but allowed the petitioner to redeem the goods against payment of fine of Rs. 4,50,000 in lieu of confiscation, in addition to payment of customs duty and taxes under P.C.T. Heading No. 39.02. Being aggrieved by the said order, the petitioner preferred an appeal before the Collector of Customs (Appeals), Lahore, which was dismissed on 27-1-1986. The petitioner then filed a revision, which was dismissed by an Additional Secretary of the Ministry of Finance on 28-4-1987. Being aggrieved by the said orders of the Customs Officers, the petitioner preferred a writ petition, which is now before me for disposal.
2. I have heard the arguments of the learned counsel for the petitioner and the learned Standing Counsel for the respondents and have perused the file.
3. On behalf of the petitioner, three submissions have been made: First, that no tests of the goods were conducted in its presence and that no test reports were supplied to it. Second, that P.V.C.
Resin was shipped out by mistake by the exporters from Singapore, in respect of which mistake the petitioner had no hand and that in these circumstances the petitioner could not be saddled with any mala fides. In this connection learned counsel for the petitioner has referred to Messrs Noor A.I & Co. v. Central Board of Revenue PLD 1959 SC 364, Hardcastle Waud (Pakistan) Ltd. v. Pakistan and others PLD 1962 Kar. 895 and Pakistan, through the Secretary, Ministry of Finance, Rawalpindi etc. v.
Hardcastle Waud (Pakistan) Ltd., Karachi PLD 1967 SC 1. Third, that the declaration made by it in its bill of entry for home consumption was not false to its knowledge and, unless the same was established, the mischief of section 32 of the Customs Act, 1969, was not made out.
4. As regards the first submission of the petitioner, the same cannot be accepted. The order of the learned Deputy Collector of Customs dated 4-5-1985 shows that the learned counsel for the petitioner that appeared before him was informed that copies of the laboratory test reports declaring the samples sent for test to be P.V.C. Resin could be supplied to him, in case he wanted to contest the results, but the learned counsel for the petitioner in reply stated that they did not want to contest the same and rather pleaded guilty. The order also shows that the learned counsel for the petitioner requested that a very lenient view may be taken, as the importer was a poor person and that this request be taken as an appeal for mercy. Still further, the grounds of appeal filed by the petitioner before the Collector of Customs (Appeals), Lahore, also show that the petitioner did not want to controvert the test reports, so as to prolong the case, for the reason that it had blocked its entire business capital in the import of the consignment. The main ground that the petitioner took up in appeal was that it had not made any misdeclaration, but was the target of misfortune. In these circumstances, the plea of the petitioner that the goods were examined or test reports were taken in its absence and later not supplied to it cannot be taken into consideration at this stage.
5. With regard to the second submission, the petitioner was not able to produce before the learned Deputy Collector of Customs or the Collector of Customs (Appeals) or before the Ccntral Board of Revenue any document from the exporter in Singapore to show that by mistake it had exported 100 metric tons of P.V.C. Resin, instead of Stearic Acid Rubber Grade, and that it was calling back its consignment. Had the exporter bona fide shipped out the wrong goods, the petitioner would have raised heaven and hell, refused to accept the same and would have called upon the exporter to move the Customs under section 138 of the Customs Act for the export back of such goods to itself.
The very fact that no such thing was done, clearly shows that the petitioner had direct interest in the P.V.C. Resin.
6. With regard to the third submission, it cannot be doubted that neither before the appraisement officer nor before the Deputy Collector of Customs, the petitioner produced any letter or cable which had passed between itself and the exporter to show that the exporter bona fide had shipped out P.V.C. Resin, instead of Stearic Acid Rubber Grade. The laboratory tests of the goods conducted at the instance of the Customs had also revealed that the imported goods were P.V.C. Resin and not Stearic Acid Rubber Grade, though both the goods were on the free list, but the Import Licence was only intended to cover Stearic Acid Rubber Grade. Before the appraisement officer, the petitioner was represented by its Customs Clearing Agent. In the adjudication proceedings taken up by the Deputy Collector of Customs, the petitioner was represented by Mr. Sultan Mahmood, Advocate. In the absence of any documentation showing that the exporter by mistake shipped but P.V.C. Resin, instead of Stearic Acid Rubber Grade, the adjudicating officer was not entirely wrong in holding that there was at least a prima facie case that the petitioner had made a declaration in the bill of entry form regarding the nature of the goods, having reason to believe that the same was false in a material particular. With this position, obviously the burden shifted on the petitioner to show otherwise, which it was not able to do. The three cases cited by the petitioner are distinguishable as they relate to the old section 39 of the Sea Customs Act, 1878. In any case, section 32 was also amended by the Federal Law (Revision and Declaration) Ordinance, 1981, whereby the words "knowing or having reason to believe that such document or statement is false" were substituted for the words "and such document or statement is untrue". Even otherwise, assuming section 32(1) is not violated and. No offence is made out under sections 156(1) 14 of the Customs Act, 1969, yet offence under section 156(1)9 of the Customs Act, 1969, still stands made out, as the Import Licence which the petitioner had was for the import of Stearic Acid Rubber Grade and not P.V.C. Resin. The confiscation of the goods can, therefore, be sustained on this basis as well.
See Messrs Sikandar and Brothers v. Government of Pakistan PLD 1986 Kar. 373.
7. The upshot of the above discussion is that the orders of the Customs Authorities appear to be legal and correct. No interference in the constitutional jurisdiction is called for.
8. This writ petition is dismissed with costs.