JUDGMENT AJMAL MIAN, CJ.--1. By this petition, the petitioner has prayed for the following reliefs: "The petitioner, therefore, humbly invokes the constitutional jurisdiction of this hon'ble Court and prays as under: (i) That it may be declared that the impugned Notification SRO 610(I)/88, dated 30th June, 1988 (Annexure P-6) and SRO 8(KE)/89, dated 5th January, 1989 (Annexure P-4) are illegal, ultra vires of the Constitution and the Customs Act, 1969, inoperative, and are of no legal consequence. (ii) That the amendment of the Customs Act, 1969 by adding section 25-B therein delegating power to the Central Board of Revenue, the Respondent No. 2, to further sub-delegate the power to an Officer subordinate thereto without giving any guidelines or framework to act within it, suffers from the vice of excessive delegation of power and thus is unconstitutional and illegal. (iii) To declare that the petitioner was entitled to have the goods cleared and released on the basis of the declared invoice value which was the normal and prevalent price of the goods under law. (iv) To pass an appropriate direction or order directing the Respondent No. 4 to release the consignment of the petitioner imported vide Bill of Entry (Annexure P-1) after realising duty on the basis of the declared value. (v) Any other relief the petitioner is found entitled to. Costs of the petition may also kindly be awarded."
2. The brief facts leading to the filing of the above petition are that the petitioner imported 'Diamond' brand Door Locks in December, 1988 from China National Metals and Minerals Import & Export Corporation Guangzhqu Branch China. The petitioner filed in bond bill of entry for keeping the consignment in the bonded warehouse. It seems that the Central Board of Revenue (hereinafter called the CBR), by Notification No. 610(I)/88, dated 30th June, 1988 authorized, respondent No. 3 i.e. The Controller of Customs (Valuation) to fix the value of goods under section 25-B of the Customs Act, which has been incorporated by the Finance Ordinance II of 1988 which was converted into an Act passed by the Parliament. In pursuance of the above aforesaid Notification, respondent No. 3 issued on 5th January, 1989 Gazette Notification bearing SRO 8(KE)/89 fixing the value of door locks including of the 'Diamond' brand at US Dollars 42 per dozen instead of US Dollars 40 per dozen at which rate the petitioner had allegedly imported. It is the case of the petitioner that because of the above Notification respondent No. 4 enhanced the valuation of the petitioner's imported goods from Rs. 2,45,191 to Rs. 3,11,750. The petitioner has, therefore, filed the above petition, and has prayed for the above reliefs.
3. We had issued pre- admission notice to the learned Deputy Attorney General, through the Standing Counsel, in response whereof Mr. Hussain Adil Khatri has appeared.
4. In support of the above petition, Mr. Khursheed Anwar Shaikh has urged as follows: (i) That section 25-B is ultra vires as it gives unfettered, without any guideline the power to respondent No. 2 i.e. CBR or to the Officer authorised to fix any value for the imported or exported goods. (ii) That even otherwise the Notification dated 5th January, 1989 cannot be made applicable retrospectively. On the other had, Mr. Hussain Adil Khatri has submitted that Section 25-B is not ultra vires and that the above Notification is applicable to the petitioner as if they i.e bill of entry ex bond for clearance after the date of the above Notification.
5. Adverting to the above first submission of Mr. Khursheed Anwar Shaikh that s~'' T5 ultra vires as it gives un-fettered, without any giddiness the power to Respondent No. 2 i.e. CBR or to the Officer authorised to fix any value for the imported or exported goods, it may be observed that in furtherance of his above submission he has referred to above section 25-B and has contended that ex facie it is ultra vires being a case of excessive delegation of the legislative power without any guideline. It may be advantageous to reproduce section 25-B which reads as follows: "25-B. Fixation of value for imports and exports.-(l) Notwithstanding anything contained in section 25, the Board or such officer as authorised by the Board in this behalf maty, from time to time by notification in the official gazette, for the purpose of levying customs duties under this Act or any other law for the time being in force, fix the value of the goods specified in the First Schedule and the Second Schedule to this Act, at such rates as it may deem fit and subject to such conditions or limitations as it may impose. (2) Different values they be fixed for different classes or descriptions of the same type of goods."
6. A perusal of the above quoted section 25-B indicates that it provides that notwithstanding anything contained in section 25, the Board or such officer as authorised by the Board in this behalf, may from time to time, by a notification in the official Gazette for the purpose of levying customs duties under this Act or any other law for the time being in force, fix the value of the goods specified in the First Schedule and the Second Schedule to this Act, at such rates as it may deem fit and subject to such conditions or limitations as it may impose.
It also provides that different values may be fixed for different classes or descriptions of the same type of goods.
7. It may be pertinent to point out that prior to the incorporation of above Section 25-B, the Central Board of Revenue had started issuing Customs General Orders fixing the prices of the various items for the purpose of valuation under the Customs Act. One of such Customs General Orders was CGO 5/85 which related to the Auto parts. The above CGO was amended and then substituted by CGO 10/87. The legality of the above CGO had come up for consideration in the case of Indus Automobile (Pvt.) Ltd. v. Central Board of Revenue and 2 others, reported in PLD 1988 Karachi 99, in which a Division Bench of this Court, to which one of us, (Amal Mian, CJ.) was a member, dilated upon the above question and held that CGOs do not have any statutory force but the same were framed in order to provide effective application of Section 25 of the Act. It was observed, "if the CGO was to be enforced in supersession or in violation of the provisions of sections 25 and 30 of the Customs Act, we would have no hesitation to hold that an administrative order of the CBR could not bye pass or allow the deviation of a statutory provision." In order to provide the legal cover for the fixation of valuation by the C.B.R, or by any officer authorised by it, the above section has been incorporated which is in line with section 14(2) of the Indian Customs Act, 1962.
The object of the above section seems to be to reduce the discretion which was exercisable by the customs appraising staff which generated malpractices of under invoicing in cases of import and over-invoicing in cases of export. The object of the above section apparently is of public good. 8.
Mr. Khursheed Anwar Shaikh in support of his above first submission has referred to the case of Muhammad Ismail & Co. Ltd., Lahore etc. v. Chief Cotton Inspector, Multan Division Multan reported in PLD 1966 Supreme Court 389, in which the vires of certain provisions of the West Punjab Cotton (Control) Act (IV of 1949) and rules framed, thereunder were examined ' by the Honourable Supreme Court and in that context, following observations were made as to the delegation of the legislative power: "In the modern administrative complex some amount of delegation of power is found to be unavoidable considering the very large field of regulation and control that Governments are now-a-days required to cover in the course of implementing their economic and fiscal policies. I do not see that the delegation in the present instance, is of such a character as could be assailed as objectionable. The field of choice has been limited by the Legislature itself which has provided the frame-work within which the executive authority is to function. The delegation is not of an unprecedented kind. For analogy, the provisions of the Sales-tax Act may be referred to, under which Government can exempt certain commodities from the tax. The choice of the commodities to be subjected to the tax is thus left with the executive. I find the following in Willoughby's Constitutional Law of the United States:-- "Generally speaking, it may be said that when a power is not peculiarly and distinctly legislative, executive or judicial, it lies within the authority of the Legislature to determine where its exercise shall be vested." "It is only the essential legislative power that is incapable of being constitutionally delegated. Within the framework laid down by the legislating authority, power can be delegated to a subordinate agency to carry into effect the purposes of the enactment by making detailed rules in conformity with the ' policy thus laid down. I do not think these legal bounds have been exceeded in the present case."
9. In our view the power conferred by above section 25-B is not legislative power, but is more akin to an executive power. In any case it is not peculiarly and distinctly legislative, executive or judicial and, therefore, it lies within the authority of the legislature to determine where its exercise shall be vested. We are inclined to hold that the above sections 25 and 25-B are to be read in conjunction as the former section contains guideline, though in section 25-B it has been provided that "notwithstanding anything contained in section 25" but it does not mean that the C.B.R, or any other officer authorised by it can fix any arbitrary valuation without having any nexus with the real valuation of the goods. It may be pointed out that section 25 contemplates that the value of each consignment is to be assessed on the basis of the criteria contained therein, whereas section 25-B dispenses with the assessm ent of value of face consignment but envisages fixation of valuation of the goods concerned till a notification remains in force. But such a notification cannot be static but is revisable from time to time on account of change in the international market as to the prices of the goods to be imported or exported.
10. In our view a notification under section 25-B can be impugned if it can be demonstrated that the powers contained under section 25-B have been exercised arbitrarily or capriciously, for example in a case where the import value in terms of section 25 of a particular item is US Dollars 20, whereas under a notification issued under section 25-B the C.B.R, or the Officer, authorised by it fixes the value at 40 US Dollars. There should be nexus between the notified value and the actual market value as observed hereinabove. But some discrepancy between the two will not vitiate the notification. In the instant case the difference between the price declared by the petitioners namely, 40 US Dollars per dozen and the notified price 42 US Dollars, comes to about only 5% and, therefore, it cannot be urged that the powers under section 25-B have been exercised arbitrarily or capriciously as to make notification illegal.
We may also point out that there will be presumption in favour of the validity of a notification under section 25-B and the burden to prove that it is not valid on the ground that the power has been exercised arbitrarily or capriciously will be on the person who so alleges.
11. As regards the second submission of Mr. Khursheed Anwar Shaikh, that even otherwise the Notification dated 5th January, 1989 cannot be made applicable retrospectively, it may be observed that it is a well settled principle of law that a notification cannot be made applicable retrospectively but it is to operate prospectively, whereas a statutory provision if so expressly provided can be made applicable retrospectively. In the instant case the question, whether the petitioner had filed ex bond bill of entry for clearance of the goods prior to the date of notification or after the date of notification will have to be adjudicated upon by the forums provided under the Customs Act, and not directly by this Court.
12. We would, therefore, dismiss the above petition in limine.