IFTIKHAR MOHAMMAD CHAUDHARY, J.- Facts of the case as stated are that petitioner imported a Fish Carrier (IVAN FYODOROV) registered under German Flag. The vessel was beached at Gadani for the purpose of scrapping it. The petitioner filed Bill of Entry, in which the tonnage of the Vessel was mentioned as 7240 Matric tons. Lateron the Builder's Certificate was obtained, which indicated the actual tonnage of the vessel to be 7229 long tons, excluding removals. The tonnage of the vessel declared by petitioner in above two documents was not found acceptable by the Customs Department, as despite of persistent demands the assessment of the duty was not finalized.
Contrary to it, Department demanded duty at 7843 long tons. It may be noted that as per the stability book and survey report of, BURO MEHRMANN Light Displacement tonnage of the vessel has been Notified to be 7240 long tons. Probably to settle the dispute, petitioner paid duty for 7444.5 long tons. Even then the matter was not finally settled, as such, it persuaded the petitioner to file instant Constitutional Petition, with the following prayer:- "It is, therefore, prayed that this Hon'ble Court may be pleased to:-
(a) Declare the decision of Respondent No. 2 giving the tonnage of the vessel at 7843 long tons is illegal and without lawful authority.
(b) Declare that the petitioners are liable to pay the duty and other charges at 7199.5 long tons and not on 7843 long tons as assessed by the respondents.
(c) Direct the Respondent to refund the excess duty charged on 245 long tons.
(d) Any other further/additional relief/reliefs this Hon'ble Court may deem fit and proper in the circumstances of the case.
(e) Cost of the petition."
Alongwith the petition an application for interim relief was moved, on which following order dated 09th June, 1994, was passed:- "C.M.No.465/94:- Notice. Meanwhile petitioner may lift remaining goods on depositing extra amount of duty beyond 7240 long tons being demanded by respondents. However, additional amount so deposited by the petitioner shall be kept separate by respondents for disbursement, subject to final decision of Court in this petition."
2. The respondent No.2 filed counter affidavit through Assistant Collector and in para-2 stated that the weight of the vessel has been assessed by the department as 7843 long tons on the basis of Stability book and on the Certificate issued by Messrs Buro Behrmann (Hamburg) dated 11-06-1993 the assessm ent has been carried out under section 5(3) of the Notification i.e. SRO No.245/1/93 dated 31st March, 1993. It would be advantageous to reproduce hereinbelow, contents of para 2 of the counter affidavit :- "2. That para No.2 is denied. Infact the Importer declared the weight of the said said ship (IVAN FYODOROV') about 7240 Long Tons whereas the weight assessed by the replying Respondent is 7843 long tons on the basis of Stability Book and the Certificate issued by M/S Buro Behrmann (Hamburg) dated 11.6.93 and after deducting removals 29.5 Long tons the weight of the vessel is 7813.5 Long Tons for assessm ent purpose. This assessment has been carried out under Section 5(3) of the Notification (S.R.O.245/1/93 dated 31.3.93). Abatement under section 27 of the. Customs Act.
1969, for the LDT, claimed by the Importer did not merit consideration as the same did not qualify the conditions of damage or deterioration required for this purpose. Keeping in view this position the competent authority ordered to assess the LDT given in the stability booklet by the deducting the weight of missing machinery only and the Insulation material as provided in SRO 245(1)93, dated 31.3.1993, and accordingly abatement on insulation material was rejected."
3. In support of the above contention, the Certificate dated June, 11th, 1993, referred to hereinabove, was also annexed which is reproduced in extense.
C E R T I FI C A T.E.
Fish Carrier (IVAN FYODOROV'
Built 1960 Gdansk -Poland.
I hereby confirm that according to the Trim Stability book the light displacement or light weight is 7,968 metric tons, equivalent to 7,843 long tons.
This light weight includes the following: 500 long tons cement 53 long tons cork, 50 long tons equipment which has been removed, 603 long tons in total have to be deducted from the above light weight. The net light weight of the vessel is 7.2'40 long tons.
This Certificate is given with out Prejudice and liability.
Sd/- Capt. Cai Behrmann, Marine Surveyor."
4. Mr. Muhammad Saleem, learned Counsel for petitioner contended that even as per the Certificate being relied by the department, the net light weight of the vessel has been notified to be 7240 longtons therefore, the custom department is not competent to charge duty beyond this weight.
5. Raja Rab Nawaz, the Deputy Attorney General, did not agree and insisted that the duty will be charged at 7843 long tons. Under rule 5 of the Deferment Import Duty (on Ship for Scrapping) Rules, 1993.
6. Under rule 5 sub-rule(3) of the Deferment of Import Duty (on Ship for Scrapping) Rules,1993, issued vide SRO referred to hereinabove, in absence of a Builder's plan, the ship shall. Be surveyed by an approved Surveyor, to ascertain the light displacement tonnage prior to beaching etc. For convenience, the said rule is reproduced herein-below :- "5. Procedure for deferment.-(1)...........
(2)....................................................
(3) In the case of non-production of builder's plan under sub-rule (2), the ship shall be surveyed by an approved surveyor to ascertain the light displacement tonnage (L.D.T) prior to beaching, as laid down in the Public Notice No. 1/1990, dated the 3rd February, 1990, issued by the Collector of Customs, Custom House, Gaddani."
A perusal of the pleadings indicates that the Builder's Certificate produced by petitioner after beaching of the vessel at Gaddani was not accepted and the Custom Department got surveyed the vessel for assessing its Light displacement tonnage from M/S Buro Mehrmann and obtained a Certificate, contents whereof have been reproduced hereinabove. A perusal whereof, manifestly makes it clear that the net light weight of the vessel has been determined to be 7240 long tons.
Thus it is held that in absence of non-acceptance of Builder's plan under sub-rule (2) of rule 5 of the Deferment of Import Duty (on ship for scrapping)Rules, 1993, the Certificate furnished by the approved Surveyor to ascertain the light displacement tonnage shall be exclusive proof to assess the duty and department after having surveyed the vessel from an approved surveyor is bound to accept the weight of the vessel and legitimately cannot take departure from such Certificate 5 document.
7. Since the Servey Certificate of Fish carrier (IVAN ' FYODOR 1960 GDNASK -POLAND, has been procured and relied by the Custom department itself therefore, the net weight of the vessel i.e. 7240 long tons mentioned therein would be considered for assessing the duty and respondents have no lawful authority to assess the Custom duty at the weight of 7843 long tons.
For the foregoing reasons the petitioner is allowed and it is held' that petitioner is liable to pay the duty on 7240 long tons and Custom Department has got no jurisdiction and lawful authority to assess the duty on the vessel at 7843 long tons.
No order as to costs.