JUDGMENT IJAZ NISAR, J. - M/s. Mubeen Enterprises Limited imported a consignment from Netherland declaring to contain waste paring and scrap of plastic and other plastic comprising of mixed plastic scrap falling under P.C.T. Heading 3915.1000. On arrival of the goods, the Customs Authorities conducted their physical examination and declared them to be 80% serviceable and 20% un-serviceable scrap. Consequently, a show cause notice was issued to the petitioner as to why the goods in question may not be confiscated, besides penal action against them under the provisions of the relevant laws.
2. Mr. Sarfaraz Ahmad Khan, Collector of Customs, Lahore by order dated 20.3.1995 observed that the serviceable items were banned for importation vide Import Policy Order 1993- 94 read with section 15(g) of the Customs Act, 1969 and that the value of the serviceable goods was different from the value declared by the importer and the importer besides importing the banned goods had mis-declared the description and value in a bid to deprive the Government of its legitimate revenue and to evade prohibitions and restrictions for the time being in force. Consequently, a show cause notice was issued to the importer. In reply to the show cause notice, the importer denied the charges levelled against him and submitted that the consignor nt consisted mainly of rejected parking/wrapping1 material printed with the name of the foreign manufacturers in different languages and the trade marks etc. Which were not produced locally and not usable for their original purpose. According to the Collector of Customs, an inquiry was got conducted into the importer's contention that the subject goods were not sold as packing/wrapping material in the market, which transpired that the seized goods were openly sold as material in the local market in the range of prices between Rs.40/- to Rs.100/- per K.G. Depending upon their quality while the scrap was available at the rate of Rs.2.50 per K.G. While disposing of the case, the Collector of Customs observed that perusal of explanatory notes of the Harmonized System on heading 39.15 revealed that the products of this heading mainly consisted of broken or worn articles of plastic clearly not usable for their original purpose or of manufacturing waste. The imported plastic reels, cellophane films and aluminium foils were not mentioned therein and were therefore assessable under headings 3920.4200, 3920.2000 and 7607.2000 of Pakistan Customs Tariff Operative paragraph of the Collector's order is to the following effect:- "As the import of serviceable portion of the consignment is prohibited under the relevant Import Policy Order 1993- 94 and the mandatory provisions of section 15(g) of the Customs Act, 1969, the same is confiscated under section 156(1)(9) and (14) of the Customs Act,1969. The balance unserviceable portion in the form of waste and scran is ordered to be released on the value which shall be ascertained under the relevant provisions of law. Its exact weight should, however, be ascertained by physical weighment before delivery in line with the directions at para-13 above in association with the importer or his clearing agent."
3. The above order of the Collector of Customs has been assailed in this writ petition. During the pendency of this writ petition, the Customs Authorities were directed, to segregate serviceable and un-serviceable material in the light of the instructions issued by the C.B.R. On 20.12.1995,
4. During pendency of the writ petition, an application under Order 1, Rule 10(2) read with Section 151 CPC was filed on behalf of MARS, INC, manufacturer of chocolates, candies, candy bars and ice creams etc. That as the consignment in question carried their registered trade marks, they were likely to be affected by the outcome of the judgment and hence they were proper and necessary party to the writ petition and therefore may be impleaded as such. Similar application was also made on behalf of M/s. Nestle, M/s. Jacob's Bakery Limited, England and M/s. Sara Lee/DE N.V. Netherlands with a request that the Customs Authorities may be directed not to release the subject goods to the petitioner.
5. M/s. Mobeen Enterprises nas invoked the Constitutional jurisdiction of this Court challenging the order dated 20.3.1995 passed by the Collector of Customs, Lahore confiscating the alleged serviceable portion of the consignment, inter cilia, on the grounds that the learned Collector of Customs did not apply his independent mind who was swayed by the opinion of his subordinates and meted out a discriminatory treatment to the petitioner ignoring the order passed by the learned Member(Judicial), Government of Pakistan.
6. Learned counsel for the petitioner requests for the grant of the sarpe relief to the petitioner as had been granted in W.P.No. 15982/95 filed by Adnan Raees. According to him, the law permits the moulding of relief, though not specifically claimed by the petitioner.
7. Mr. Izharul Haque, Legal Advisor, Customs Department has seriously challenged the maintainability of the writ petition. According to him since an adjudication has taken place, the petitioner has a remedy of filing appeal under section 193 of the v- Customs Act, 1969 and to the Supreme Court, if he fails from there. He further contends that nature of the controversy as to the head under which the goods fall is within the domain of the Customs hierarchy and the controversy being factual should not be gone into in writ jurisdiction. In support of his contention, he has relied on M/s. Saleem Industries Limited v. Central Board of Revenue, ere.(NLR 1987 Tax 54).
8. In reply to the above argument, learned counsel for the petitioner has cited M/s. Kamran Industries v. The Collector of Customs (Exports) etc.(PLD 1996 Karachi 68), wherein it was observed that where the impugned direction is completely without jurisdiction and patently illegal, it is not essential to avail alternate remedy and that in the matters pertaining to the interpretation of fiscal rights and instruments, the rule of availability of alternate remedy is not applicable.
9. The controversy in the present case is of factual nature. The question to be determined is as to whether the consignment\imported by the petitioner is serviceable for its original purpose or is a waste scrap. Its determination requires an expert opinion which requires a thorough examination of the goods and inquiries from various quarters about their further use. From the petitioner's side, no material has been produced before me to come to the conclusion about the un-serviceability of the goods in question for their original purpose. The petitioner has an adequate remedy of challenging the impugned order before available form. The Collector of Customs was the competent authority to adjudicate the matter, therefore, the order passed by him cannot be said to be without jurisdiction.
10 in the circumstances narrated above, I do not feel persuaded to interfere in the matter, at this stage in exercise of the Constitutional jurisdiction of this Court and in consequence dismiss the writ petition. Parties are, however, left to bear their on costs. With the dismissal of the writ petition, no order is required to be passed on the application, made under Order 1 Rule 10(2) C.P.C, on behalf of M/s. Mars and Nestle etc.