1. ' SAEEDUZZAMAN SIDDIQUI, J.--The petitioner has challenged in this petition the demand of customs duty amounting to Rs,4,52,02,875 on a consignment which was imported by the petitioner in the year 1976 in connection with the construction of four berths and two transit sheds at the Karachi Seaport. The following facts may be stated here which formed the background of controversy in the present case.
2. ' The petitioner is a limited company which is entirely controlled by the Federal Government. The petitioner was awarded a contract for construction of four new berths and two transit sheds at Junabuhder at Karachi in June, 1975. The petitioner associated M/s.Christiani & Nielsen A.S.Copenhangen, Denmark in the above contract awarded to them. It is the case of petitioner that the site for construction was handed over to them by the KPT in December, 1975 while actual construction work started in January, 1976. It is also the case of the petitioner that in December, 1975 they imported 1245 packages containing building material from Germany for use in the above construction work and on arrival of the consignment they applied to respondent No,3 for grant of a licence for storage of the consignment at pile yard as they were not in a position to pay the custom duty on the consignment at a time. On the above application of petitioner, respondent No,3 granted a licence under section 13 of the Customs Act, which was issued in their favour on 19-12- 1975. This licence was valid for a period of 3 years. The case set up by the petitioner before us is, that although the licence issued to them was under section 13 of the Customs Act but it was not a licence for a bonded warehouse as neither any custom staff was posted at pile yard where goods were stored nor any register was maintained for stock of goods. It is on record that on arrival of above 1245 packages of building material in December, 1975, the petitioner submitted before Customs Authorities a bill of entry in respect of the consignment which is Annexure 'C' to the petition on which a sum of Rs,82,75,137 was assessed as custom duty by respondent No,3. The petitioner however, admittedly did not pay the above custom duty before removing and consuming the consignment, which they claim was consumed by them during 1976. On 20th April, 1979, the petitioner made an application to respondent No,3 for renewal of the licence issued to them under section 13 of the Customs Act on the representation that the material stored at the pile yard was still unconsumed. The Customs Authorities after receiving the request from the petitioner for renewal of licence, made inspection of site on 7-6-1979 and discovered that the statement made by the petitioner in their letter dated 20th April, 1979, praying for extension of licence on the ground that the goods were not yet consumed, was incorrect as 90% of the consignment was found consumed and only 10% was available at site. Accordingly, a show-cause notice was issued to the petitioner on 17-6-1979 proposing action against them on account of contravention of the terms of licence and asking them to submit their reply before 1-7-1979. The petitioner, however, before issuance of above show-cause notice filed a bill of entry on 13-6-1979 before the Customs Authorities for the entire consignment on which customs duty amounting to Rs,4,52,02,875 was assessed. The Collector of Customs after hearing the petitioner by order dated 24-2-1982 held that the petitioner had not paid the customs duty payable on the consignment before its removal from the bonded warehouse and accordingly imposed a personal penalty of Rupees one crore on the petitioner for contravention of the provision of the Customs Act. The petitioner filed appeal against the order of the Collector of Customs challenging the imposition of penalty as well as assessment of customs duty before respondent No,2. Respondent No,2 by his order dated 23-6-1983 while maintaining the assessm ent of customs duty on the consignment reduced the personal penalty of Rupees one crore to Rupees ten lacs on the consideration that the petitioner is a company belonging to public sector. A further revision filed against the above order of Member, Board of Revenue (respondent No,2) before respondent No,1 also failed.
3. ' Mr.Sharaf Faridi and Mr.Liaquat Merchant, the learned counsel for the petitioner contended before us that levy of customs duty on the basis of the rate prevailing in June, 1979 was wholly without jurisdiction as the petitioner had submitted their bill of entry in respect of the consignment in the year 1976 on its arrival on which the customs duty was assessed at Rs,82,75,137.70 which alone could be recovered from the petitioner. It is accordingly urged that when once the bill of entry in respect of the consignment was filed and accepted by the authorities in December, 1976, the customs duty could not be recovered on the basis of assessment prevailing in the year 1979.
4. Alternatively, it is contended by the learned counsel that even if the goods were removed unauthorisedly and consumed by the petitioner from the warehouse, the customs duty thereon could be recovered only in accordance with the rates prevailing on the date of such removal which in the case was between 1-4-1976 to 13-10-1986 as shown by the petitioner in the statement filed with the petition as Annexure 'D'. The demand of customs duty on the basis of the rate prevailing in 1979, is, therefore, according to learned counsel, arbitrary. Learned counsel for the respondents on the other hand contended that in so far as the contravention of terms of licence for bonded warehouse issued to petitioner is concerned, it was fully established by the statement of the petitioner before the Customs Authorities, and, therefore, they could not now urge that the demand of customs duty according to rates prevailing in 1979 was not justified specially when they themselve filed B/E for the entire consignment before the Customs Authorities on 13-6-1979. It is urged that although customs duty was assessed on 1245 packages of building material imported by petitioner, in December, 1976, on the basis of bill of entry submitted by them, but as they themselves approached respondent No,3 for issuance of a licence under section 13 of the Customs Act being unable to pay the customs duty assessed on the consignment, the same was of no avail.
5. It is submitted that the petitioner having availed of the licence granted to them by respondent No,3 under section 13 of the Customs Act and stored the consignment at pile yard, which for all intents and purposes became a bonded warehouse, could only remove the goods therefrom after filing an ex-bond entry and payment of customs duty as prevailing on the date of such removal. It is urged, that it is an admitted position in the case that the petitioner, before removal of goods from the pile yard for consumption, did not file any ex-bond entry and pay the customs duty. However, in their request to respondent No,3 for renewal of licence issued to them, they represented in April, 1979 that the consignment was still unconsumed. However, on inspection by the authorities in June, 1979 it was found that 90% of the consignment was missing. The petitioner, accordingly, voluntarily filed bill of entry for the entire consignment on 13-6-1979 to avoid action for contravention of the terms of licence and in these circumstances, they could not dispute the assessment of customs duty made in the year 1979. With regard to date of consumption of consignment disclosed by the petitioner in Annexure 'D' to the petition, the learned counsel for the respondents submitted that these dates were never accepted by the respondents at any stage of the proceeding and according to petitioner's own showing the consignment was unconsumed until April, 1979, when they requested for renewal of licence issued to them under section 13 of the Customs Act. After hearing the learned counsel for the parties at length we are of the view that there is no merit in this petition.
6. ' Customs duty on imported consignment is charged in accordance with the provisions of section 30 of Custom Act which is as follows:- "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 that section; and
(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.
7. ' 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 minifest of the conveyance is delivered.
8. ' Provided further that, in respect of goods for the clearance of which a bill of entry for 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 on the date on which the duty is actually paid . "
9. ' It is quite clear from reading of the above provision of law that in case of a imported consignment not kept in a bounded warehouse and meant for immediate clearance, the customs duty is payable at the rate chargeable on the date, the bill of entry is delivered to appropriate officer.
10. However, where the consignment is stored In a bonded warehouse, the customs duty is payable at the rate prevailing on the date of actual removal of goods from warehouse for consumption. In the case before us, on admitted facts, the consignment was kept by the petitioner after its import at pile yard for which a licence was obtained by them under section 13 of the Customs Act. It was, therefore, a case where goods were stored in a bonded warehouse and as such customs duty was chargeable on the consignment in accordance with clause (b) of section 30 of Act. The further admitted position in the case is that consignment was removed from the warehouse and consumed by the petitioner without filing any ex-bond. Entry as required under the law. As no ex- bond entry was filed in the case by the petitioner before removal of the goods from warehouse, there is nothing on record to establish the actual date of removal of goods by the petitioner from the warehouse. However, the petitioner themselves, represented to respondent No,3 in April, 1979 while applying for renewal of warehouse licence issued to them that the goods were still not consumed. Over and above this, the petitioner also filed a Bill of Entry for home consumption for the entire consignment on 13-6-1979 on which customs duty was assessed according to rate prevailing in June 1979. In these circumstances, the assessment of customs duty by respondent No,3 on the imported consignment according to rates chargeable in June, 1979 was not only justified but strictly in accordance with law. The learned counsel for the petitioner very vehemently argued that the respondent may be directed to determine the actual date of removal of consignment by the petitioner from warehouse before calculating the customs duty, but in our view it is not necessary in view of the admitted position in the case stated above. The learned counsel for the petitioner lastly contended that penalty has been wrongly imposed by respondent, under section 156(1)(14) of the Customs Act as the case does not fail under this provision of law. It is true that in the order imposing penalty on the petitioner the above section of Customs Act is referred, but it is not disputed before us that the penalty could be imposed against the petitioner under other provision of Customs Act for violation of terms of licence and under section 111 of the Customs Act such penalty could be recovered from the petitioner. In these circumstanaces, mere mention of a wrong section of the Act by the Customs Authority could not deprive them of their jurisdiction to impose penalty and to recover the same which they otherwise possessed under the law. The petitioner has not been able to show that by mentioning of wrong section of the Act any prejudice has been caused to them. It is not argued before us that Customs Authorities were not at all campetent to impose any penalty on the petitioner under the Customs Act for contravention of the terms of the licence of the bonded warehouse. We accordingly do not find any substance in this petition which is accordingly dismissed with no order as to costs.