1. ' SYED ABDUR REHMAN, J.---This is a petition under Article 199 of the Constitution.The petitioner had imported spindle-holders and plastic rings under an import licence. These had to be imported for the purpose of replacing damaged spindle holders utilised in the Mills. When the goods arrived at Karachi Port, the petitioners filed bill of entry for release of the said goods stating that the same fell under harmonised Entry No,8448-3900 with duty leviable thereon @ 20% ad valorem and no sales tax payable. The Customs authorities, however, arbitrarily and illegally altered the classification to Entry No,8448-3310 claiming duty at 40% and sales tax @ 12/1-2%. The petitioners have challenged this arbitrary and illegal order of the Customs authorities by this petition and have prayed as under:- "(a) Declare that BOLSTERS arc covered by Entry No,8448-3900 of the Customs Import Tariff.
(b) Declare that the Respondents are not entitled m claim Customs duty on BOLSTERS save and except to the extent of 20% and further are not entitled to claim any sales tax thereon.
(c) Declare that the impugned order (Annexure 'E') and the refusal of the Respondents to allow clearance of the said goods under Entry No,8448-3390 is contrary to law and of no legal effect.
(d) Direct the Respondents to allow clearance of BOLSTERS under Entry No,8448-3900?
(e) Restrain the Respondents from demanding Customs duty in excess of 20% and/or sales tax from the Petitioner and direct them to allow the release and clearance of the said goods as prayed for herein.
(f) Restrain the Respondents from taking any action adverse to the Petitioner and direct the refund of any amornts unlawfully realised from the Petitioner.
(g) Costs.
(h) Such other relief as may be deemed appropriate by this Honourable Court."
(i) ' The respondents filed parawise comments in which they have contested the petition and have insisted that the goods are textile spindles and liable to be classified under Entry No,8448.3310.
2. ' We have heard Mr. Khalid Anwar, learned counsel for the petitioner and Mr. Ikram Ansari, learned Standing Counsel for respondents.
3. ' In the case of Gulistan Textile Mills v. Pakistan and others C.P. No,193/75, decided on 11-11-1982 (1983 CLC 1474), this precise point came up for consideration before a Division Bench of this Court.
4. Gulistan Mills had imported spindle-holders or Bolsters which the Customs authorities sought to tax as spindles, the Division Bench consisting of our learned brothers Saeedunaman Siddiqui, J. (as he then was) and Fakhruddin H. Shaikh, J. (as he then was) rejected the contention of the Customs authorites in the above mentioned judgment.
5. ' It will be useful to reproduce the following observations as under:- "After reading the above definitions of spindles we are of the view that by no process of reasoning spindle holder (bolster unit) imported by the petitioner could be treated as part of spindles.
6. Spindles-holders (bolsters) are used in the machine frame to hold the spindle to prevent it from falling and to eace the pressure on it, but by reason of being used as a support for spindle the bolster would not become the part of spindle itself. We accordingly accept this petition and declare the order dated 4-2-1975 passed by respondent 3 assessing the spindle holders and rings under Item No,84.38(C) of the Pakistan Customs Tariff as without any lawful authority. We are therefore of the view that spindle-holders (Bolster Units) imported by the petitioner did not fall under Heading 84.38(C) of the Pakistan Customs Tariff and therefore the respondents wrongly demanded Customs duty from them @ 50% ad valorem plus 10%. Since bolster Units were not specified under any specific heading of Pakistan Customs Tariff it will fall under the Heading 84.38(T) on which Customs duty is payable 20% ad valorem.
7. ' This case was taken up in Appeal to the Supreme Court by the respondent in (Civil Appeal No,77-K of 1983). The Supreme Court in its judgment dated 14-2-1991 upheld the decision of the Division Bench of this Court and observed as under:- "We are in full agreement with conclusions arrived at in the impugned judgment, which are supported by cogent reasons. However, additionally we would like to touch upon two documents upon which reliance has been placed by Customs authorities in support of their assessment of subject goods to be classifiable under Heading 84.38(C) PCT. In the record of the High Court in paragraph 10 of the counter- affidavit, reference is made to legal Note 2(b) of section XVI of Pakistan Customs Tariff and on that basis it is contended that subject goods are parts of spindles, hence placing them under the same heading they are to be assessed under Heading 84.38(C) of PCT. Perusal of this provisions in Customs Tariff and Trade Control (9th Edition 1987-88) shows that it does not make things very clear. It appears that there arose some doubt on the classification of such goods that is why need was felt to issue SRO 502(1)173 dated 6-4-1973. Copy of this SRO is on the record of the High Court, perusal of which shows that C.B.R. Had authorised repayment of customs duties in excess of 20% ad valorem on bolster units falling under heading 84.38 of the First Schedule to Tariff Act of 1934. It is further stated in this SRO that this concession is available to a recognized manufacturer of Textile Spindles, who has imported bolster units and has made a declaration on the Bill of Entry at the time of clearance that bolster unit will not be used for any purpose other than manufacture of textile spindles. In any case, if there is a doubt with regard to the fact whether subject goods are to be assessed under Heading 84.38(C) or 84.38(D), then interpretation favourable to the Importer is to be accepted which is 84.38(E) PCT.
8. ' Contention was raised before us that High Court should not have interfered in writ jurisdiction in matter of factual inquiry as respondent did not avail departmental remedies of appeal and revision, where this question should have been thrashed out. Contention is untenable for the reason that, as stated in the counter-affidavit, order of assessment was obtained from Collector, which was made basis for classifying the subject goods under Heading 84.38(C) PCT. Not only that but in support of such conclusion, reliance was also placed on SRO issued by CBR hence respondent was justified in not approaching both these forums for appeal and revision.
9. ' Mr. Ikram Ansari, learned Standing Counsel submits that in view of the judgment of the Supreme Court referred to above, he is not in a position to controvert the above position.
10. We are also in respectful agreement with the judgment of the Supreme Court as well as the judgment of Division Bench of this Court referred to above. Accordingly we allow the petition and declare that bolsters are covered by Entry No,8448-3900 of the Customs Import Tariff with duty thereon in accordance therewith. In the circumstances of the case we do not make any order as to cost. The Bank Guarantee furnished by the petitioner is ordered to be released.