1. ' SALEEM AKHTAR, J.---The petitioner imported 112 cases of Menthol Crystals from Thailand. He filed in bond bill of entry on 30-4-1987. On 6-5-1987 he filed bill of entry for release of 50% consignment and paid the customs duty as assessed by the department. However, while the goods were released and were in the process of carrying away by the petitioner the Custom's Appraising Intelligence Branch issued a show-cause notice dated 18-5-1987 alleging that the normal value of Menthol from Thailand was U.S.$ 13 per Kg but the petitioner had declared purchase price at the rate of U.S.$ 8.48 per Kg. According to the respondent the goods were under invoiced and thus the difference of value comes to U.S. $ 9,147.16 which could have resulted in short levy of taxes of Rs,1,05,676. It was also alleged that import licence also falls short of Rs,1,58,217. The petitioner was thus charged to show cause why action should not be taken under section 16 of the Customs Act, read with section 3(1) of the Imports and Exports Trade (Control) Act, 1950 punishable under clause
(9) of section 156 (1) of the Customs Acr read with section 3(3) of the Imports and Export Trade (Control) Act, 1950. The petitioner replied this notice and reiterated that it had imported the consignment from Thailand @ U.S.$ 3.855 per pound which comes to U.S.$ 8.48 per Kg. It was denied that the goods of Thailand origin were available at price of $ 13 as alleged by the respondent. It also demanded the evidence on the basis of which the normal price at $ 13 per Kg was claimed. The respondent supplied invoice dated 11-10-1985 showing the price at $ 13 per Kg.
2. The respondent by the impugned order dated 26-8-1987 referred to the invoice copy of which was supplied to the petitioner and also the rates available in the economic zone viz. Japan, China, Singapore and Hong Kong and held that the normal price was U.S.$ 13 per Kg. And the offence charged with was made out. Respondent No,4 taking a lenient view released the goods on the value assessed by him with a warning to the petitioner. The respondent in his counter-affidavit has stated that the Appraising Intelligence Branch succeeded in procuring positive evidence of higher value in respect of identical imports and, therefore, goods were withheld. The normal value of such goods was U.S. $ 14 per Kg. Imported from the same country. The petitioner had tried to deprive the Government of the revenue by misdeclaring the value which was found grossly under invoiced. It was denied that in the year 1985 there was abnormal fall in price of Menthol as alleged by the petitioner.
3. Mr. Shoukat Hayat the learned counsel for the respondent has raised preliminary objection that as without exhausting the alternate remedy available under law the petitioner has filed this petition which is not maintainable. Mr. Makhdoom Ali Khan learned counsel for the petitioner has contended that as the order is without jurisdiction and in violation of the law declared by the superior Courts, the petitioner was entitled to the Constitutional remedy and file the petition. The law in this regard is now well-settled. The learned counsel has referred to Nawabzada Muhammad Amir Khan's case PLD 1961 SC 119 where the following observation was made:- "The rule that the Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring the jurisdiction of the Court. It is a rule by which the Court regulates the exercise of its Own discretion. As stated in Halsbury at page 107, 3rd Ed., Vol. II: ' The Court will, as a general rule, and in the exercise of its discretion, refuse an order of mandamus, when there is an alternative specific remedy at law which is not less convenient, beneficial, and effective.'
4. ' One of the well-recognized exceptions to this general rule is a case where an order is attacked on the ground that it was wholly without authority....................................
5. ' In the present case, the attack was on the very jurisdiction of the Controller to proceed with the assessm ent of estate duty on account of the section 74-A of the Estate Duty Act. An appeal had been filed during the pendency of the writ petition, but that could not stand in the way of the exercise of writ jurisdiction by the High Court. In fact, in cases where an order is challenged as wholly without jurisdiction a petition for a writ appears to be a more appropriate remedy."
6. ' Again the same view has been confirmed by the Supreme Court in the case of Murree Brewery Co.
7. Ltd. v. Pakistan PLD 1972 SC 279, where the following observation was made:- ' It is thus evident that the appellant challenged the very jurisdiction of the Capital Development Authority (hereinafter referred to as 'the C.D.A.') to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility. It was held by the Supreme Court in Lt.-Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others PLD 1961 SC 119, that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well-recognised exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority."
8. Considering the above-stated observations and as discussed below respondent No,2 while determining normal value of the goods has exercised his jurisdiction by ignoring the mandatory provisions of law and the judgments passed in this regard by the superior Courts. We therefore overrule the preliminary objection.
9. ' Mr. Makhdoom Ali Khan contended that normal price fixed by respondent No,4 was not according to the provisions of sections 25 and 30 of the Customs Act as respondent No,2 had taken into consideration the invoice of a date in the year 1985 and further that reliance has been placed on the value of the goods prevalent in country other than the country of export.
10. From the fact if is clear that respondent No,4 has relied on the invoice of the year 1985 whereas the import was made in the year 1987. He further referred ( to prevalent price in the neighboring countries viz. Japan, China, Singapore and Hong Kong. A close scrutiny of sections 25 and 30 of the Customs Act will show that the normal price is determined on the basis of the value available in the country of export at a time when the goods arc to be released or duty is payable. For such conclusion were are supported by the observations made in Farooq International's case 1985 CLC 1781. Obviously the respondent neither ascertained the value of goods as required by sections 25 and 30 of the Customs Act nor relied upon the evidence mainly available from the country of export.
11. ' The other ground pressed by the learned counsel for the petitioner is that the evidence on which respondent relied was not made available to the petitioner at any stage. This objection could be pressed only in respect of the value of goods prevailing in the neighhouring country referred by respondent No,4 in the impugned order. It has been held by the superior Courts that if the Customs Department relics upon evidence which adversely affects the interest of the importer then such evidence should be made available to him to afford a chance of rebuttal. Reference can be made to Indus Automobile (Pvt.) Ltd. PLD 1988 Kar.
99. Admittedly at no stage of proceeding the respondent disclosed to the petitioner the evidence relating to the prevalent rate of goods in the neighbouring countries viz. Japan, China, Singapore and Hong Kong. Therefore, this evidence also cannot be a basis for the determining a higher value.
12. ' Mr. Shoukat Hayat, learned counsel for the respondents stated that it was open to the petitioner to have produced evidence to prove that the price declared by it was the prevalent price in the country of export. The burden was upon the department to show that the price declared by the petitioner was incorrect and not in accordance with law. Reference can be made to the Controller of Central Excise and Land Customs, West Zone, Chittagong v. Imdad Ali 1969 SCMR 708 where the following observation was made:- "The department's contention that the evidence produced by the respondent was equally unreliable, for the certificate of the Oriental Chamber of Commerce only certified the origin of the goods and not the price thereof cannot be of any assistance to it, for it must be remembered that it was not for the respondent to establish that he had made a true statement but the onus was entirely on the Department to establish that the respondent had given an untrue declaration of the value. The weakness of the respondent's evidence could not establish the Department's case nor could the Department presume that because the evidence produced by the respondent was unreliable its own guess was more accurate."
13. ' Mr. Makhdoom Ali Khan contended that the demand of respondent No,4 to pay the duty on the imported goods which have been cleared and in respect of which the bill of entry has been filed is illegal and without jurisdiction. By his order respondent No,4 has demanded duty at a rate prevalent on the date of the order. In this regard the learned counsel has referred section 30(b) of the Customs Act which provides that the value of duty is applicable in respect of goods cleared from the warehouse at the rate which was prevalent on the date on which a bill of clearance of goods was presented. Therefore, the rate of duty prevalent on a date on which the bill of entry was presented in respect of the goods mentioned therein shall be the duty payable. It is an admitted position that the petitioner had filed bill of entry in respect of 50% of the goods on 6-5-1987 therefore the rate of duty prevalent on this date shall be applicable to these goods.
14. ' Having determined the controversy between the parties we find that the impugned order passed by respondent No,4 was illegal and without jurisdiction. We therefore remand the case to respondent No,4 to determine the value of the goods in accordance with the provisions of law and the observation made in this judgment. /Order accordingly.