' This judgment shall dispose of Writ Petitions Nos.6613/98, 6328/98, 6540/98, 6612/98, 6762/98, 7511/98, 7877/98, 7512/98, 7513/98, 7510/98 7500/98, which have arisen in the similar circumstances and raised common questions of law.
2. In all these petitions, the petitioners are importers of Soyabeen Toasted Soyabeen which are to be cleared from the Customs Authorities. They have challenged, the import rate price, on the ground that the same is implausible and arbitrary. The petitioners' claim is that they imported goods by observing necessary formalities but the respondents were not clearing the goods on the declared value and were insisting payment at the rate of assessed value by the authorities. It is the case of the petitioner that the valuation of the goods can be carried under sections 25 and 25(b) of the Customs Act, 1969 on the basis of reliable and verifiable evidence and material, but the valuation assessed by the respondents is beyond the scope of both the provisions of law. It is also objected that the Notification in terms of section 25(b) of the Act could not override the declared value.
3. In the report, respondent No,5 has explained that the petitioners imported goods from India but misdeclared the value and that the value had to be assessed on the basis of value, duly notified in terms of section 25(b) of the Customs Act, 1969, and also that the petitioner failed to produce any evidence in support of plea raised before the Adjudicating Authority.
4. Mr. Zafar Iqbal Bajwa, Advocate and Mr. Muhammad Siddique Mughal, Advocate, argued the' case on behalf of the petitioners while Mr. A. Karim Malik, Legal Advisor of respondents argued on their behalf.
5. Learned counsel for the petitioners while making reference to section 25 of the Act, argued that the criterion for determination of the value of the goods would be price prevailing in the country of origin. Placing reliance on Messrs Latif Brothers v. Deputy Collector Customs, Lahore 1992 SCM R 1083 and Messrs A.G.E. Electric Co. v. Government of Pakistan and another 1994 CLC 420, it was argued that the onus to establish that the importer made misstatement was entirely on the Department which failed to muster evidence from the country of origin to belie the declared value and that the petitioner could not be held to be guilty of mis-statement. Learned counsel further submitted that the valuation determined by the authorities was otherwise arbitrary and unreasonable as there cannot be any static price of the imported goods involved and the price keeps on fluctuating from time to time. It is also the grievance of the petitioner that they were not associated or heard by the authorities while fixing the price of the imported goods and that the administrative instructions of Central Board of Revenue could not be allowed to curtail the power of the Adjudicating Officer to make independent determination.
6. Learned counsel for the respondents submitted that the S.R.O. In vogue is KE/98, dated 14-2-1998 and not the one mentioned in the petitions. According to the learned counsel, the provisions of section 25 of the Customs Act, 1969, are not attracted to these cases as the same are covered by the provisions of section 25(b) of the Customs Act, 1969. He further submitted that the price fixed by the Department to avoid corruption and malpractices and notified in terms of section 25(b) of the Act cannot be questioned in the Constitutional jurisdiction. He further submitted that the petitioner cannot grumble as before the opening of Letter of Credit and import of goods, the price assessm ent had already been notified, therefore, the petitioners should have kept in view the value so ascertained while bargaining with the foreign exporters. Learned counsel also submitted that in any case the petitioners are not to pay the duty from their own pocket but the same is transferred to the consumers. Lastly, it was submitted that the petitioners have alternative remedies under the Act which having not been availed, these petitions are not maintainable.
7. There is considerable force in the submissions of the learned counsel for the respondent that with the insertion of section 25(b) of the Customs Act, the present cases are covered by the said provision. This question was also considered in Messrs Latif Brothers v. Deputy Collector, Customs, Lahore 1992 SCM R 1083, where it was observed that with the addition of section 25(b) in the Customs Act, 1969 with effect from 26-6-1988, the position had become different and that the C.B.R.
Has now statutory right of fixing the value of goods specified in the First and Second Schedules of the Act by notification at such rates as it may deem fit and where such rates are fixed, they are taken into account for the purposes of calculating of value of imported and exported goods for the purposes of section 25 of the Act. The objective of section 25(b) appears to be reduced the discretion which was exercisable by the Customs Appraisal Staff which generated malpractices of under invoices in case of imports and over-invoicing in case of exports. The object of this section, is, therefore, apparently of public good. In PASCO Hardware Co. v. Government of Pakistan PLD 1989 Kar. 621, it was observed that the presumption was in favour of the validity of the notification under section 25(b) and the burden to prove otherwise would be on the person who so alleges.
8. In the Collector of Customs, Karachi and others v. Messrs New Electronic (Pvt.) Ltd. PLD 1994 SC 363, it was observed that the valuation fixed for various items of goods under section 25(b) of the Customs Act, 1969 cannot be challenged in Constitutional petition on the ground of unreasonableness. The operative part of the judgment reads as follows:-- "I have given my serious thoughts to the above submission and I am of the view that reasonablenegs of the various valuations fixed for various items of goods cannot be subject- matter of an enquiry in exercise of Constitutional jurisdiction by the High Court. The above controversy requires thorough factual probe into the matter on the basis of materials to be brought on record by the parties. The remedy, if any, of the respondents is to make representations through their association to appellant No,3 and/or to approach any other competent forum. I am, therefore, not inclined to accept the above contention."
9. The situation in the present case is also identical. The petitioners seek to challenge the price fixed as notified under section 25(b) of the Customs Act on the ground of unreasonableness. The questions raised need factual inquiry which of course cannot be done in the exercise of Constitutional jurisdiction. Ordinarily, the presumption is in favour of the notification being valid, and to exercise of jurisdiction in accordance with law, unless proved otherwise. As noted supra, the object of insertion of section 25(b) in the Customs Act, 1969, appears to be to eliminate the malpractices and corruption by which the duties were saved in connivance with the customs appraisal staff, and therefore, the object of the rule appears to be in the larger public interest. While fixing the price before publication of notification, normally the representatives of the persons dealing with various imports and exports are consulted who are always at liberty to raise objections and present their view-point before the concerned authority. The final decision is usually taken after consultation with the representatives of the exporters and importers. If the petitioners had any valid exception or objection to the valuation so proposed by the authorities, they could have objected the same personally or through their respective associations before the authorities.
This remedy is still available to the petitioners who can set the machinery at motion by raising objections through their representatives or by themselves before the authority or other concerned forum. Obviously, the grounds on which, the fixation of price in the notification are challenged require factual inquiry which cannot be made in the present proceedings. In these circumstances, the petitions are not maintainable.
10. On being asked, learned counsel for the petitioner, could not .Deny that the notification under section 25(b) of the Act notifying the fixation of imported price rate of the various goods was published much before the opening of Letter of Credits and import of goods by the petitioner. The petitioners were, therefore, conscious of the price already assessed and declared by the authority and in these circumstances, while importing the goods and dealing with the foreign exporters they could have kept in consideration the valuation already notified by the authority if they have opted to proceed with the import on a different price, they cannot possibly grumble for their own acts nor after importing the goods they will be entitled to challenge the validity of the imported price rate, notified by the authority.
11. The petitions are also not maintainable for another reason that the petitioners would be entitled to challenge the orders of the Adjudicating Officer before the Appellate Forum. In the hierarchy of jurisdiction under the Customs Act, 1969, appeal is also provided before the Tribunal whereafter third appeal is provided in the High Court before the Division Bench by virtue of recent amendment in the Customs Act.
12. The petitioners have not been able to make out any ground for interference. It is also observed that in some of the petitions filed by Mr. Muhammad Siddique Mughal, Advocate, the goods have already been got released by the parties after making full payment of the amount determined by the Adjudicating Authorities subject to decision of their objections.
13. For the reasons above, these petitions are dismissed.