1. ' ALLAH DINO G. MEMON, J.---By this petition under Article 9 of the rovisional Constitution Order, 1981, petitioner has challenged_the assessment on Compasses" and consequent recovery of Rs,1,16,960 as customs duty under akistan Customs Tariff heading 90.16 AO 1 at 85% ad valorem.
2. ' The brief facts giving rise to the present petition are that the petitioner obtained a licence No, BO 70206 on 11-1-1983 under the Import Policy of 1982, which was notified vide SRO No,619(1)82 published on 1st July, 1982, for the import of instruments, apparatus and appliances. According to the petitioner the said items were described against Serial No,420 of the Free List. The petitioner imported 42 Cartons containing "Compasses" for students and consignment arrived at Karachi on 7-5-1983 ex s.s. "MCKINNEY MAERSK" under Bill of Entry I.G.M. No,1035-83. According to the petitioner under the relevant Heading of Import Trade Control Schedule and the P.C.T. Schedule the "Compasses" imported by the petitioner fell under heading 90.16 A02 for which the licence was issued against SI. No,420 of the Import Policy, 1982 which was exempted from payment of any rate of duty. That the Customs Authorities treated the import of "Compasses" for students as correctly imported against the licence issued but attempted to classify the goods for the purpose of duty as "Geometry Boxes" falling under Heading 90.16 A O l which carried 85% ad valorem. Although according to the petitioner the "Compasses" fall under Heading 90.16 A02 for the purpose of I.T.C.
3. Schedule and P.C.T. Schedule. The petitioner drew attention of the authorities to the distinction specifically drawn between Compasses, Geometry Boxes, Scales and other instruments, vide S.R.O.
4. 661(1)9/80, dated 26-6-1980 exempting sales tax but to no avail. The Customs Authorities thus realised a sum of Rs,1,16,960 as customs duty on 11-6-1983 from the petitioner treating the Compasses as Geometry Boxes falling under Heading 90.16 A01 of P.C.T. Schedule. That the petitioner claimed refund of excess duty realised from the respondent on 18-6-1983 but the same was rejected vide order dated 28-9-1983 with the following observation "that the goods were correctly assessed and charged to duty". That the petitioner filed appeal against the above decision before the respondent No,2 but the same was dismissed on 31st March, 1984, without affording an opportunity of being heard to the petitioner. That later on the petitioner came to know that the Collector of Customs, Appeals after the arrival of the goods imported by the petitioner had issued a ruling as Collector's Ruling No,2/83 "that even the parts falling under Heading A02 of 90.16 of the P.C.T. Be classified as Geometry Boxes and should be classified under sub-Head A.0.1 of the Heading 90.16 of the P.C.T." According to the petitioner the said ruling of the Collector was against the provisions of Pakistan Customs Tariff Schedule and therefore, the same was void ab initio as the Collector had no jurisdiction to alter or amend the Pakistan Customs Tariff Schedule. The petitioner filed Revision Application before the respondent No,1 but the same was also dismissed.
5. Therefore the above petition has been filed with the following prayers:--
(a) That the action of the Respondents in classifying the 'Compasses' imported by the Petitioner under Heading 90.16 AOl of P.C.T. Instead of 90.16 A02 of P.C.T. By treating them as 'Geometry boxes' be declared as illegal and without lawful authority.
(b) That the impugned orders passed by the Respondents dated 28-9-1983, 31-3-1984 and 5-11- 1984 (Annexures P-8, P-10 and P-12 respectively) rejecting the claim of refund of the Petitioner, as a consequence, be quashed and set aside.
(c) Pass an appropriate order directing the Respondents to refund the amount of Rs,1,16,960 illegally levied and realised from the Petitioner.
6. ' We have heard Mr. Khurshid Anwer Shaikh learned counsel appearing for the petitioner , Mr. M.
7. Hussain Adil Khatri learned Standing Counsel appearing for the respondents, and have gone through the documents produced along with the petition.
8. ' It was contended by Mr. Khurshid Anwer Shaikh learned counsel appearing for the petitioner that the "Compasses imported by the petitioner could not be considered as Geometry Boxes and therefore, they could not be classified under Heading 90.16 A01 but under the classification 90.16 A02 and were not liable to payment of customs duty. It was further contended that the licence was issued against serial No,420 and not against serial No,417 of the Import Policy and, therefore, the 'Compasses' fell under Free List. That the ruling No,2 of 1983 given by the Collector of Customs on 15-5-1983, was illegal, without jurisdiction, and ab initio void, as he had no jurisdiction to alter or amend Pakistan Customs Tariff Schedule. Moreover,the goods had arrived at Karachi on 7-5-1983 and, as such the ruling dated 15-5-1983 could not apply to the above goods retrospectively. He has further contended that the orders passed by the respondents were illegal and the petitioner was entitled to refund of Rs,1,16,960 which were illegally recovered from him as customs duty.
9. ' Mr. M. Hussain Adil Khatri, learned Standing Counsel appearing for the respondents has contended that the 'Compasses' were part of Geometry Boxes and, therefore, they were rightly classified by the respondents, and the recovery of customs duty from the petitioner under Heading 90.16 A.O.1 was justified.
10. ' We have considered the contentions of the learned counsel. The main question to be decided in the present petition is whether the 'Compasses' were covered by sub-heading A.O.1 or A.0.2 of 90.16 of P.C.T. At the time when the goods were imported the following Pakistan Customs Tarrif Schedule was applicable:-- Heading DescriptionCustoms dutySale 90.16A.O.1Geometry Boxes85% 10% ad-val10% 90.16A.O.2Other drawing,marking out and mathematical calculating instrumentsFree "The licence which has been produced as Anx. `P-1' shows that the petitioner was granted licence against serial No,420 of Import Policy which was on Free List. The copy of Import Policy produced as Anx. `P-2' shows that:-- Sr1.No.417Geometry Boxes90.16 A.O.1 Sr1.No.420Instruments, apparatus and appliances, parts and accessories thereof (other than Laboratory instruments,including stop clocks).
11. The description of 'Compasses' produced as Anx. `P-4' page, 37 clearly shows that the same could be used only for drawing and under no circumstances it could be considered as 'Geometry Box'. No doubt it is one of the instruments, which is contained in the Geometry Box but cannot be considered as 'Geometry Box', and therefore, it will fall under the definition of drawing instrument and will thus fall under heading 90.16 A02, and therefore, was exempted from payment of customs duty. The order passed by the respondent No,3 does not give any reason as to how the goods were correctly assessed and charged to duty. The order of respondent No,2 shows that:- "The impugned goods have been assessed after taking into consideration the physical attribute of the goods."
12. ' Unfortunately, the order which was assailed before respondent No,2 does not show that the goods were assessed after taking into consideration the physical attribute of the goods. A grievance was raised by the learned counsel appearing for the petitioner that the petitioner was not heard by the Appellate Authority before the appeal was dismissed. The order passed by respondent No,1 shows that the petitioner was not present but it does not show that the petitioner was served with any notice or summon to attend the date of hearing and, as such, the grievance of the petitioner appears to be correct that he was not afforded an opportunity of being heard by the respondent No,2 before the appellate order was passed.
13. ' As far as the order passed by respondent No,1, in revision was concerned, the same is mainly based on the Ruling No,2 of 1983, passed by the Collector of Customs on 15-5-1983 holding that instruments falling under Heading A02 of 19.16 of P.C.T. May also be classified as 'Geometry Boxes' and shall be liable to payment of customs duty. We are afraid, Collector of Customs has not correctly appreciated the provisions of P.C.T. The Compasses/Drawing Instruments will fall under Heading 90.16 A02 of P.C.T. And no custom duty could be charged on the same. "In interpreting a penal or taxing statute the Courts must look to the words of the statute and interpret them in the light of what is clearly expressed. It cannot imply anything, which is not expressed" as observed in the case of Collector of Customs (Appraisement) Karachi and others v. M/s. Abdul Majeed Khan and others; (1977 SCMR 371). Thus the ruling given by the Collector of Customs was inconsistent with the provisions of P.C.T., and therefore, the respondent No,1 had erred in relying upon the same.
14. In view of the above reasons we allow this petition, and classification of `Compasses' under heading 90.16 A01 and consequent recovery of customs duty at 85% advalorem from petitioner by the respondents is declared to be without lawful authority and of no legal effect. The respondents are accordingly directed to refund the amount of Rs,1,16,960 (Rupees One Lac Sixteen Thousand Nine Hundred Sixty) recoverd as customs duty from the petitioners. However, there will be no order as to costs.
15. ' We had decided the above petition on 7-6-1989, by a short order and these are the reasons for the same.
16. ' TANZIL-UR-REHMAN, J.---While finding myself in complete agreement with the reasons, for allowing the petitioner, given hereinabove by my learned brother, Allah Dino G. Memon, J. I would like to add that decision of levying custom duty on the consignment imported by the petitioner also seems to be contrary to the previous practice followed by the Customs Authorities. The learned counsel for the petitioner has filed two bills of entries, Annexures P-14 and P-15 dated 14-9- 1982 and 2-3-1983 respectively (Messrs Chandna Impex, Karachi), in which the drawing compass for student was cleared free as to the rate of duty as well as sales tax except charging the surcharge at the rate of 5% only. These two bills of entries relate to the same financial year and particularly second one was cleared free about a month before the consignment in question of the petitioner arrived.