' This judgment and order will dispose of two Writ Petitions bearing No, 2326 of 1974 titled Diwan Anwar-ul-Islam v. Federal Land Commission and another and No, 74 of 1975 titled Mst. Sarwari Begum etc. v. Diwan-ulIslam etc.
2. It was argued by the learned counsel for the petitioners that in this matter the donees were not issued or served any notice by the Additional Chief Land Commissioner in the exercise of his suo motu revisional jurisdiction under rule 13(1) of the Punjab Land Reforms Rules, 1972. Actually rule 13(1) pertains to the revisional jurisdiction of the Chief Land Commissioner but in this case it appears that the Chief Land Commissioner had assigned the case to the Additional Chief Land Commissioner. Under rule 13(3), while exercising a revisionai jurisdiction, the Additional Chief Land Commissioner was required to afford such person an opportunity of being heard who was likely to be affected by his order. In the instant case it is conceded by the learned Assistant Advocate- General that no such notice was issued to the donees/alienees. From that point of view the order passed by the learned Additional Chief Land Commissioner on 13-8-1974, was an unity and void ab initio in the eye of law. No doubt the same order was maintained by the Federal Land Commission in revision, but it is well settled that when the basic order is void any superstructure based thereon cannot improve the situation. See Yousaf All v. Muhammad Aslam Zia and 2 others (1). Reference may also be made to Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others (2) where it was laid down that where right of hearing is claimed on the basis of a statute or statutory rules then if an order is passed without hearing the man likely to be affected, the order is a nullity and the mere fact that it was maintained in appeal or revision would not improve the situation. See also All Muhammad and 3 others v. Chief Land Commissioner, Punjab and 7 others (3). In that view of the matter, the present writ petitions are accepted, the order of the Additional Chief Land Commissioner dated 13-8-1974 and the order of the Federal Land Commission dated 19-11-1974 are hereby declared to be without lawful authority and of no legal effect against the petitioners and the cases are remanded to the learned Chief Land Commissioner for fresh decision in accordance with law after hearing all concerned and giving them due opportunity to defend themselves. There shall, however, be no order as to costs.
Petitions accepted.
(1) PLD 1958 SC (Pak.) 104 (2) PLD 1971 SC 61
(3) PLD 1977 Lab. 352 PLD 1977 Lahore 971 Before K. M. A. Samadani, MUHAMMAD KHURSHID BHATTI-Petitioner versus THE COLLECTOR, CENTRAL EXCISE AND LAND CUSTOMS, LAHORE AND 3 OTHERS-Respondents Writ Petition No, 577 of 1976, decided on 30th March 1977.
(a) Customs Act (IV of 1969)- -S. 25 (1) & (2) read with Explanation I and Central Board of Revenue Customs General Order No, 24 of 1974, dated 21-12-1914 -Imported goods-Valuation-Normal price spoken of in subsection (1)-Not price imported goods likely to fetch in open market in Pakistan but price which importer as independent purchaser paid in country of purchase-Other costs, charges and expenses like freight insurance to be added to such price-Sum total of price paid by importer and costs, charges, and expenses incidental to sale borne by importer, held, constitute value of imported goods. [p. 974]A
(b) Customs Act (IV of 1969)- -- S. 25(1) & (2) read with Explanation 1, Ss. 27 & 30 and Central Board of Revenue Customs General Order No, 24 of 1974, .Dated 21-12-1974-Import of goods-Valuation-Depreciation-Re- bate-Section -Re- bate-Section 25 does not speak of any discount for depreciation resulting from car being driven away from country of purchase to Pakistan or its having been already used for a certain period after its purchase by importer-Importer, accordingly, not entitled to any rebate-State if nevertheless willing to make allowance for depreciation, nothing objectionable and importer at least could have no grievance, such course being to his advantage-Importer has therefore to accept whatever formula Customs authorities may evolve for working out depreciated value- Taking depreciation into account-Just a concession, not claimable by importer as of right-General Order No, 24 though mentioning S. 27 yet such mention made only in connection with any damage imported vehicle may have suffered and not in relation to depreciation -Formula given in General Order No, 24, held. Not in consequence open to attack as being ultra vires of Ss. 25 & 30. [p. 973]B
(c) Customs Act (IV of 1969)- Ss. 25, 30 & 79-Date of assessm ent of value for calculation of import duty-Date mentioned in S. 25- Date referred to in S. 30 i,e,, date on which bill of entry entered under S. 79 or date on which manifest of conveyance delivered-Cars brought in on carnets de passages and not in normal way-Customs authorities, held, rightly considered date of submission of papers for assessment as relevant date. [p. 974]C
(d) Customs Act (IV of 1969)- --- S. 30-Spirit of law being that date for purpose of calculating value of goods and date for determining rate of duty be same no justification, held, for taking one date for one purpose and another date for other-Importer, held, further, could not raise objection to any such date since depreciation allowed ex gratia as pure concession. [p. 975] D
(e) Customs Act (IV of 1969)- - Ss. 25 & 30 read with Central Board of Revenue Customs General Order No 24 of 1974, dated 21-12- 74-Allowing import into Pakistan on a carnet de passages -A concession-To let such car be retained in Pakistan and to grant an import permit-Also acts of indulgence on part of State- Extremely improper, held, to force State to extend such concessions further at instance of beneficiary of such concessions. [p. 9751E Asif Sajjad Jan for Petitioner.
Zia Mahrnood Mlrza for Respondents. Date of hearing: 21st March 1977.
' This order shall dispose of Writ Petitons Nos. 577 and 3067 of 1976 both of which call for an authoritative interpretation of section 25 of the Customs Act, 1969. In either case the assessment of the price of a motor-car for the purpose of levying import duty is under challenge. Each car was brought into Pakistan in the first place under the authority of a carnet de passages. But subsequently the owner changed his mind, obtained an import permit therefor and the car was accordingly assessed by the Customs authorities and a certain import duty was accordingly demanded from the owner. While assessing the value of the car, some allowance was made by the authorities concerned for the depreciation undergone during the period that elapsed between the purchase of the car in the country of its origin and its import into Pakistan. The allowance was made in accordante with the instructions issued in that behalf by the Central Board of Revenue in the Customs General Order No, 24 of 1974 issued on the 21st of December 1974. It is the formula given therein for working out the depreciation which is under attack in these two writ petitions.
2. According to the learned counsel for the petitioners it is ultra vires section 25 and section 30 of the Customs Act. It is for this reason that a proper appreciation of these two sections in general, and of section 25 in particular, is necessary.
3. Only subsections (I) and (2) of section 25 are relevant to the cases before us. Subsection (1) reads as follows "(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 a sale in open market between a buyer and a seller independent of each other."
' We may, for the time being, ignore the date and its implications. It has been clearly mentioned in this subsection that the value of any imported goods shall be for the purpose of this section the normal price and the normal price has been defined in this very subsection as the price which the imported goods would fetch on a sale in open market between a buyer and a seller independent of each other. The meaning of expression "a sale in open market between a buyer and a seller independent of each other" is given in Explanation 1 and there is no dispute about it in the instant cases. However, according to the learned counsel for the petitioners, in order to determine the normal price of the imported car, we should ascertain its price in the open market in Pakistan. But a careful perusal of subsection (2) of section 25 will show that that is not the correct construction of subsection (1). Subsection (2) may be reproduced here in extenso for the convenience of reference "(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 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 ;
(b) that the seller will bear freight, insurance, commission and all other costs, charges and expenses incidental to the sale and the delivery of the goods at that port, airport or place which will be included in the normal price
(c) that the buyer will bear any duties or taxes applicable in Pakistan which will not be included in the normal price."
' In this subsection certain assumptions have been made. The first assumption is contained in clause (a) and it concerns 'the place of delivery'. It has nothing to do with the normal price. The legal implication in view of clause (a) of subsection (2) is that even though the imported goods were purchased and taken delivery of in a foreign country, they should be assumed to have been delivered at the port or place of importation in Pakistan. Similarly, the implication of the second assumption contained in clause (b) is that the freight, insurance, commission and all other costs, charges and expenses incidental to the sale should be included in the normal price. An the third assumption as given in clause (c) is that the duties or taxes applicable in Pakistan and payable by the bayer do not constitute a part of the normal price. If we read subsection (1) with subsection (2), it becomes abundantly clear that the normal price spoken of in subsection (1) is not the price which the imported goods would fetch in the open market in Pakistan but is that price which as an independent purchaser the importer paid in the country where he bought it. It is to this price that the other costs, charges and expenses like freight, insurance etc. Should be added. Thus it is the so total of the price paid by the importer and the costs, charges and expense incidental to the sale borne by him that will constitute the value of the imported goods. The effect of the assumption in clause (a) is that the good will be deemed to have been delivered to the importer in Pakistan for the price he paid at the time of purchase. Section 25 does not speak of any discount for the depreciation resulting from the fact that the car was driven all the way to Pakistan from the country of its origin or from the country where it was purchased ; or from the fact that it has already been used for a certain period of time after its purchase by the importer.
' Thus under this section, the importer is not entitled to any rebate on that account. Nevertheless if the State is willing to make an allowance for the depreciation, there can be no objection thereto. At least the importer can have no grievance as it will be to his advantage that depreciation taken into account. For the determination of such a concession, the importer will have to accept whatever formula the Customs authorities may evolve for working out the depreciated value. For, it is just a concession which the importer cannot claim as a matter of right.
4. In the General Order No, 24, there is, no doubt, a mention of section 27 of the Customs Act in paragraph 3 thereof. But that is only I connection with any damage that an imported vehicle may have suffered and not in relation to depreciation. Should the Coustoms authorities go strictly by the provisions of section 25, the petitioners will not be entitled to any allowance for depreciation. And it may be mentioned here that the petitioners do not rely upon section 27 in this behalf.
5. The second question for consideration in these petitions relates t the determination of the relevant date for the purpose of evaluation of the price of the imported goods and the calculation of the import duty. The date mentioned in section 25 is the date referred to in section 30 and the data referred to in section 30 is the date on which a bill of entry is entered undo section 79 of the Act or the date on which the manifest of the conveyan is delivered.
' Since in the cases under examination the cars were brought in on carnets d passages and not imported in the normal way, the Customs authorities rightly considered the date on which the papers were submitted to them for assessment as the relevant date. In fact, there is no objection to this date being taken as the relevant date. However the learned counsel for the petitioners asserts that the same date should have been taken as the date of import for the purpose of working out depreciation in the value of the car.
From the tenor of section 30, it is no doubt clear that the spirit of the law is that the date for the purposes of calculating the value of the goods and the date for determining the rate of duty should be the same.
6. Therefore, there is, in my opinion, no justification for taking one date for one purpose and another date for the other. But since the depreciation is being allowed ex gratia as a pure concession, the imported cannot raise an objection to the date as he cannot legally object to the formula laid down in the General Order No,
24. It will be open to the Board of Revenue to re consider this question and for the sake of consistency at least to work out depreciation with reference to the date in relation to which the rate of duty is determined. But an importer cannot maintain a writ petition on the basis of a concession being allowed to him by the State.
It must also be noted that to allow any one to bring a car into Pakistan on a carnet de passages was itself a concession and to Ft such a car be retained in Pakistan and to grant an import permit therefor are also acts B of indulgence on the part of the State. It would, therefore, be extremely improper to force the State to extend these concessions further at the instance of the beneficiary of those concessions.
7. For the reasons recorded above, I dismiss both the writ petitions. The parties shall, however bear their own costs.