SHAFIUR REHMAN, J.- Leave to appeal was granted to the appellant, an importer of dutiade goods, to examine whether against the entries of the import documents the appellant could get the quality of the warehoused goods reexamined at its option to determine the quality of goods finally imported and the price reduced according to such verified quality of the goods which during the interregnum stood warehoused.
2. The facts of the case are that the appellant imported 21,945 kgs. Of hydrogen peroxide in 627 polycans which arrived at Karachi on or about 27th of December, 1978. The goods were warehoused by the appellant. The first instalment of consignment namely, 320 polycans of hydrogen peroxide (weighing 11,200 kgs.) was taken out for home consumption by the appellant It after payment of the duty etc. As per valuation in the import documents. On testing the quality of the cleared goods, the appellant found that instead of the declared quality 35% Purity by Weight
(PBW) the goods were of far deficient quality as the contents of H202 were found only 2.5% and 1.64% PBW, respectively. It got the samples from the balance of the quantity still warehoused and the test showed their quality in percentage terms to be 1.48%. The appellant sought proportionate reduction in the value of the duty of the goods which was denied by the Customs authorities on which it got cleared the balance on payment of full duty under protest. The appellant thereafter filed a claim of refund before the Customs Authorities. The refund claim was of Rs. 63,369 towards customs duty and sales tax overpaid on the basis of valuation as per import documents. This was rejected by the Assistant Collector of Customs with the following order on 18-11-1982:- "I have gone through the records of the case and find that importers have failed to produce evidence of repatriation of foreign exchange.
The claim therefore merits no consideration and is rejected as inadmissible."
An appeal was taken to the Collector of Customs which too was dismissed with the following observations:- "Careful scrutiny of the record indicates that the Hydrogen Peroxide was exbonded and it was detected that its strength was 2.5% and unfit for use. Since the goods have already been cleared from the warehouse no remedy under section 108 was available to the appellant if the goods got deteriorated during the period these were stored in the bonded warehouse, as it was important point of fact which was to be determined prior to the delivery of goods. The appeal lacks merit and is accordingly rejected."
A revision was then preferred before the Government of Pakistan (Central Board of Revenue) which was also rejected by the observations as hereunder: - "Heard Mr. S.M. Askari and Mr. Sulaiman. The findings of the officers below are correct in law as well as on facts. The application has no force and is accordingly rejected."
In this background, a Constitution petition was filed in the High Court which too failed the learned Judges observing as hereunder:- "We have heard the learned counsel for the parties at length. The admitted position in the case is that on arrival of the consignment at Karachi the vain declared by the petitioner in the bill of entry was accepted by the Customs Authorities and at their request the consignment was kept in a bonded warehouse. It is also an admitted position that at the time of obtaining delivery of 320 polycans of Hydrogen Peroxide from the bonded warehouse the value declared by the petitioner was not disputed by the Customs Authorities and the customs duty and sales tax was accordingly recovered at the prescribed rate on the declared value.......... From the documents on record it does not appear that deterioration in the quality of Hydrogen Peroxide has taken place after it was entered for warehousing. From the letters dated 10-6-1980, 14-2-1980 and 28-3- 1980, it is quite clear that the petitioner claimed exemption of duty under section 110 of the Act and there was no allegation that deterioration in the quality of goods was due to any unavailable accident or cause.
In these circumstances, the Customs Authorities rightly rejected the claim of the petitioner. We, therefore, find no reason to interfere with the order of respondents. The petition is dismissed but there will be no order as to costs."
3. The learned counsel for the appellant (Mr. Khurshid Anwar Sheikh, Advocate) contended before us that the admitted position of the law is that the value as on the date the goods are to be taken out from the warehouse determine the rate of duty and that principle should be equally applied to the importer as well as to the Customs Authorities without leaving it to the discretion or choice of either. The admitted factual position which emerged after the various tests was that instead of the declared purity of 35% PBW the purity found was less than 2%. In view of this admitted position of fact and law the appellant was entitled to proportionate reduction in duty at least on that part of the consignment in respect of which such a concession was sought and denied and the duty paid under protest.
4. So far as the legal position is concerned, the law makes exhaustive provisions for covering every eventuality and aspect of the case. The relevant portion of section 25 of the Customs Act, 1969 reads as hereunder:- "25. Value of imported and exported goods.-(1) The value of any imported goods shall be taken to be the normal price, that is to say, the price which they would fetch, on the date referred to in section 30, on a sale in open market between a buyer and a seller independent of each other.
(2) The normal price of any imported goods shall be determined on the following assumptions, namely-
(a) that the goods brought by sea or land are treated as having been delivered to the buyer at the port or place of importation, as the case may be, and that goods brought by air are treated as having been delivered to the buyer at the airport or place where they are unloaded in Pakistan or, if the aircraft first lands in Pakistan at some other airport or place without unloading the goods, at such other airport or place;...."
Relevant portion of section 30, referred to in section 25, reads as hereunder:- "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) ......
(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: "
Section 80 provides as hereunder:- "80. Assessm ent of duty.-( 1) On the delivery of such bill, the goods or such part thereof as may be necessary may, without undue delay, be examined or tested, and thereafter the goods shall be assessed to duty, if any, and the owner of such goods may then proceed to clear the same for home-consumption or warehouse them, subject to the provisions hereinafter contained.
(2) Notwithstanding anything contained in subsection (1), imported goods prior to examination or testing thereof may be permitted by the appropriate officer to be assessed to duty on the basis of the statements made in the bill relating thereto and the information furnished under the rules and the documents produced under section 26; but if it is found subsequently on examination, or testing of the goods or otherwise that any statement in such bill or document or any information so furnished is not correct in respect of any matter relating to the assessment, the goods shall, without prejudice to any other action which may be taken under this Act, be reassessed to duty."
5. These statutory provisions, reproduced so far, make it Clear that the assessment of duty has to take place in terms of section 80 at the time of its import. That assessment is to hold good but for the exceptions hereunder:-
(i) Reassessm ent of warehoused goods when damaged or deteriorated. (Section 108)
(ii) Reassessm ent of warehoused goods on alteration of duty in the interregnum. (Section 109)
(iii) Deficiency in quantity not chargeable to duty provided the goods fall in the category of 'specified goods' having volatile character. (Section 110)
(iv) Abatement on damaged or deteriorated goods before or during unloading at the port of destination. (Section 27).
Finally, there is section 29 which provides as hereunder:- "Restriction on amendment of bill of entry or bill of export.-Except as provided in section 88, no amendment of a bill of entry or bill of export relating to goods assessed for duty on the declared value, quantity or description thereof shall be allowed after such goods have been removed from the customs-area."
6. The admitted part of the case of the appellant is that it has paid the full price to the supplier seeking no reduction, getting none, and no pending claim whatsoever. Having paid a particular price for the goods and having tendered that price as the market value of the goods it could not turn back to claim a reduction in the duty by pleading deficiency in quality and reduction in price. It was never the case of the appellant that the goods had deteriorated, evaporated or got damaged while so warehoused. None of the exceptional provisions of Law is attracted to the case. There was no deficiency due to substance being of volatile character. There was no alteration of duty during the period of warehousing. There was no reduction in value of the declared imported commodity.
In such a situation the assessm ent made under section 80 of the Customs Act would hold good as against the appellant and he cannot as a matter of legal right claim reduction because his suppliers have cheated him.
7. No case is made out for the claim of refund. Hence, the appeal is dismissed with no order as to costs.