' Both these revision applications under section 115, C.P.C. Are directed against the concurrent findings of fact by the trial Court as well as the Appellate Court decreeing two suits brought by the respondent for declaration; permanent injunction and recovery of excess amount with interest @ 14% in respect of two consignments imported by him impugning the higher assessment of customs duty by enhancing the normal price of the goods by the Customs Authorities.
2. Respondent imported Copra Estate Nuts and Dessicated Coconut from Sri Lanka sometimes in September, 1990. He submitted shipping documents manifesting the value of the goods but the Appraising Officer of the Customs did not accept the declared value of the goods and without prior notice to the respondent assessed the duty at higher rate. Respondent cleared the goods after payment of duty on both the consignments and brought two separate suits before the Civil Court seeking a declaration to the effect that the applicants had illegally and mala fide fixed higher rate on imported items and wrongly charged customs duty thereon. He prayed for a permanent injunction restraining the applicants from charging higher rate on the goods in excess of the normal value declared in the import documents. In both the suits a definite amount charged in excess of normal assessm ent was claimed alongwith interest at the rate of 24% per annum.
3. Applicants resisted both the suits and claimed having acted within the scope of their authorty.
They challenged the jurisdiction of Court as well as maintainability of the suit. The main plea raised by applicants before the trial Court was that the respondent having not exhausted remedies available to him under the provisions of the Customs Act he could not invoke the jurisdiction of Civil Court which was barred by law.
4. On facts, it was stated that the price of imported goods as claimed by an importer could not be accepted as a normal price to fetch the customs duty. The applicants valued the goods of the plaintiff at the rate of Rs,15,300 per materic ton during the period as this rate was approved by the Karachi Kiryana Merchants Association. According to them, plaintiff being member of the said Association obtained the release of his consignment and after accepting the valuation of customs duty alongwith other importers failed to file any evidence of illegal taxation at the rate of Rs,16,000 per metric ton. It was maintained, that the value of goods was correctly fixed in consultation with the representation of Karachi Kiryana Association.
5. On the pleading of the parties, following issues were settled in each of the suits:
(1) Whether the suit is not maintainable?
(2) Whether rate of imported item fixed with the consent of Kiryana Merchants Association was binding upon the plaintiff?
(3) Whether there was any justification to disbelieve the invoice L.C. Bill of Entry for taking customs duly on actual rate?
(4) Whether plaintiff is entitled to receive back rupees with interest from the defendants?
(5) Whether plaintiff had exhausted departmental remedy?
(6) What should the decree be?
6. In support of his case respondent examined himself and produced Bill of Entry Exh.P.5 and Invoice Exh.P.6 while the applicants examined Bashir Ahmed, Appraiser in the Collectorate of Customs.
7. Upon assessm ent of the relevant evidence and hearing the parties' counsel, trial Court decreed Suits Nos. 669 of 1990 and 671 of 1996 on 13-7-1991 which were impugned in Civil Appeals Nos.45 of 1991 and 46 of 1991 before an Additional District Judge but without any success. It is in these circumstances that the aforesaid revision application were filed.
8. Mr, Q.M. Rasheedi, learned counsel for the applicants vehemently contended that in the event of assessm ent of the goods imported by the respondents by the customs official, remedies by way of appeal and revision are provided under the Customs Act but the respondent without availing these remedies straightaway rushed to the Civil Court after having the goods cleared on payment of duty. On the other hand, Mr. Haider Iqbal Wahniwal, learned counsel for the respondent submitted with vigour and all emphasis at his command that the applicants having acted in violation of the statutory provisions and assessed the goods at higher rate than the normal value of the goods declared by the respondent without any prior notice their act is always subject to judicial review and scrutiny by the Civil Court which is a competent Court of general jurisdiction.
9. There may he no cavil with the proposition that section 193, Customs Act provides for an appeal to Collector (Appeals) by a person aggrieved by any decision or order passed under the Customs Act within thirty days of the date of communication to him of such decision or order, whereas section 195 provides the remedy by way of revision before the Collector of Customs and the Board of Revenue. The fact however, remains that in fact, no speaking order was passed in this case and none was communicated to the respondent as such. In the Bill of Entry in Suit No,669 of 1990 the respondent declared the normal price of the goods at the rate of Pak Rs,14,300 per metric ton whereas the Appraiser customs assessed the goods at Pak Rs,16,000 per metric ton under his signature dated 20-9-1990 without assigning any reason. In Suit No,671 of 1990 respondent declared the value of the goods at the rate of Pak Rs,9,000 per metric ton but the customs official assessed the goods at the rate of Pak Rs,10,100 rr metric ton under his signature dated 24-9-1990 once again without assigning any reason.
10. Under section 25 of the Customs Act, the value of any imported goods shall be taken to k 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 the seller independent of each other. Subsection (2) lays down three assumptions on which the normal price of any imported goods shall be determined. Under subsection (3) where the imported goods to be valued are manufactured in accordance with any patented invention or are goods to which any protected design has been applied or are imported under the foreign trade mark or imported for sale, other disposal or use under the foreign trade mark, the normal price shall be determined on the assumption that it includes the value of the right to use the patent, design or trade mark in respect of the goods.
Subsections (4), (5) and (6) and Explanation attached thereto lay down the guidelines for the Custom Authorities for valuation of the imported goods. The date referred to in section 30 is the date on which a Bill of Entry is entered under section 79 of the Act or the date on which the manifest of the conveyance is delivered.
11. In Messrs Farooq International v. Chief Controller of Imports and Exports (1985 CLC 1781) a Division Bench consisting of Naimuddin and Saleem Akhtar, JJ. Took the view that no party can be condemned on the basis of inquiry made behind his back and without his knowledge. It was observed that for purpose of levy of duty the Customs Authorities are required to determine the value of the goods. A close scrutiny of section 25(1) and (2) makes it clear that the price which an independent purchaser would have paid on the date specified under section 30, in the country where he purchased it, will be taken to be normal price of the goods. Elaborating legal position further Division Bench observed that in any event Customs Authorities are expected to assess the value of goods and determine the normal price according to law. If the authorities have been valuing the goods of the same nature at particular rate for sufficiently long period then unless some new factors have intervened or the price in the country from where the goods were purchased have changed, it is just and proper that all other imports should be given similar treatment.
12. Aforesaid view was followed in Indus Automobile (Pvt.) Ltd. v. Central Board of Revenue and 2 others PLD 1988 Karachi 99 laying down the principle that when Customs Authorities want to assess certain price as the normal price, on the basis of some material in terms of section 25 read with section 30 of the Act other than what has been declared by the importer they are bound to show such material to the importer in order to provide him an opportunity to meet the same.
13. Dealing with appeals from the orders passed by Central Board of Revenue relating to action taken under sections 39 and 167, items (8) and (9-B) Sea Customs Act, 1878 (since repealed)
Supreme Court of Pakistan in the case of Messrs Eastern Rice Syndicate v. Central Board of Revenue PLD 1959 SC (Pak.) 364 observed that the "normal price" (as ascertained under section 30) is related to market value at the port of entry in Pakistan, and is of no relevancy in determining the true export price paid by the importer in the country of origin. A discrepancy between the "normal price" as fixed by the authorities, in complete honesty, and the declared invoice price must always exist. That is a proposition whose universal truth in all such cases can hardly be questioned. And it is equally unquestionable that no merchant can be rendered subject to penalties merely on account of such a discrepancy. If it is claimed by the authorities that he has made a misstatement of price in his invoice, that cannot be established otherwise than by furnishing proof of the prevailing commercial price in the country of origin at the time of import. Without first making an attempt to furnish such evidence, it is impossible to see how the making of an future statement within the meaning of section 39 and the consequent mischief of item (9-B) in section 167 can be imputed to any one.
14. An analysis of the provisions of Customs Act particularly section 25 tends to show that on the principles and guidelines contained therein, Customs Authorities are authorised to assess the goods at a price higher than the normal price declared under the invoice and the Bill of Entry but it is necessary in all such cases to associate the importer of the consignee with the inquiry while ascertaining actual price of the goods at which the same are assessed. For this purpose, it may be necessary to call upon the importer by way of a notice to rebut the material or the evidence available with the authorities justifying the assessment of the goods at a higher value.
15. In the present case it is admitted that neither any inquiry was conducted nor was the respondent called upon to show cause against the proposed enhanced value of the goods by the Customs Authorities. This position is deducible from the evidence adduced by the parties and particularly clear and candid admission by applicants witness to the effect that the customs had made inquiry from the exporters about the price of disputed goods who disclosed excess price than mentioned in the Bill of Entry but no letter of exporter was produced. He conceded that the Authorities neither issued any letter nor made any inquiry through telephone from exporters but they had contacted other exporters. It was admitted that no notice in writing was issued to the respondent before assessing the value of the goods at a rate higher than mentioned in the Bill of Entry. It is thus established that the applicants did not act within the scope of their authority and they transgressed the limits of their jurisdiction in assessing the goods at a higher rate without any lawful justification. The action taken by the applicants in the circumstances cannot.Be said to have been taken under the provisions of the Act and it is evident that they acted beyond the scope of their authority. In this view of.The matter, respondent could not be compelled to invoke the jurisdiction of appeal and revision under the Customs Act and he was legally entitled to seek his remedy before the Civil Court, the act complained of being illegal and without jurisdiction.
16. As to the bar relating to jurisdiction of the Civil Court, it is admitted that there is no specific provision barring the jurisdiction of the Civil Court and the amendment by insertion of subsection
(2) in section 217 of the Customs Act barring jurisdiction of the Civil Court by Act No, VII of 1992 would not govern the present cases in which the cause of action arose in September, 1990 as the amendment would not operate retrospectively. The Civil Court being a Court of ultimate jurisdiction, its jurisdiction being all embracing cannot be ousted by intendment.
17. In M/s. Habib Industries Ltd. v. Pakistan through the Collector of Customs, Chittagong PLD 1962 SC 83 dealing with a case under, sections 188 and 198 of Sea Customs Act, 1878, Supreme Court repelled the bar of jurisdiction of a Civil Court which cannot be expressed in better words than the Supreme Court itself. Relevant para. To page 87 of the report reads as under: "Although the special jurisdiction of the Customs Authorities to deal with the question of assessm ent of sales-tax cannot be doubted, and the machinery provided for the purposes by the Sea Customs Act is elaborate and is expressed so as to achieve finality, yet that finality (section 188) is only to be understood within the limits of the statute and those special provisions cannot by implication have the effect of excluding the general jurisdiction of the Civil Courts, the moreso as the Act itself does not expressly stand in the way of that jurisdiction, but merely, in section 198, prescribes certain conditions subject to which it will be exercised in particular cases."
18. On the other hand, learned counsel for the applicants relied upon a Privy Council judgment is the case of Secretary of State v. Mask & Co. AIR 1940 Privy Council 105 which is a case under sections 182 and 188 of Sea Customs Act, 1878. To my mind this judgment does not improve the case pleaded by the applicants as it specifically lays down a rule that the exclusion of jurisdiction of the Civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. Even if jurisdiction is so excluded, the Civil Courts have jurisdiciton to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
19. Learned counsel also referred to unreported judgment by Syed Haider, Ali Piriada, J. (as he then was) in Revision Applications Nos.259 and 260 of. 1988, decided on 30-4-1989 taking the view that sections 195, 196 and 217 of Customs Act provide a complete code to a person aggrieved to seek redress in case of his grievance by decisions of Customs Authorities. Learned Judge further observed that jurisdiction of Civil Court was thus intended to be excluded. With utmost respects for the view taken in the above case, it may suffice to say that in the said case plaint had been rejected by the trial Court as well as the Appellate Court because no order of assessment had been produced. In view of distinguishable facts of this case, I am not inclined to follow the view taken in the earlier case.
20. For the aforesaid facts and reasons, I am clearly of the view that both the Courts below neither committed any illegally nor acted with material irregularity resulting in miscarriage of justice so as to warrant an interference in the exercise of revisional jurisdiction of this Court. Both the revisions are, thus without any merit and accordingly dismissed with costs.