RANA BHAGWAN DAS, J.- in this Constitutional Petition under Article 199 of the Constitution, petitioner seeks to impugned the original as well subsequent proceedings taken by Deputy Collector of Customs - Preventive (HQ), Collector of Customs (Exports) and Member Judicial Central Board of Revenue as barred by limitation under Section 32(3) of Customs Act, 1969, ab initio void and of no legal effect. Prayer clauses in the petition precisely reads as under:- "(a) declare that respondents have acted contrary to mandatory provision of Sections 32, 156(1) and 180 of Customs Act, 1969 as well as failed expeditious compliance of directives of this Hon'ble Court without valid reason or explanation.
(b) declare that travel of sample and its test process without association of petitioner has got no probative value thus enquiry/investigation and adjudication made on the basis of such test is against the Constitutional rights of petitioner as well as contrary to principles of natural justice therefore of no legal effect and consequences.
(c) declare that original order passed by respondent No.3 was adjudged as without jurisdiction and lawful authority by superior Court therefore, subsequent proceedings based upon the original order also suffer from same illegality.
(d) declare that the original as well as subsequent proceedings are barred by limitation under Section 32(3) of Customs of Act, 1969 hence of no legal effect and ab initio void.
(e) declare that imposition of penalty by respondent No.2 under clause 14 of Section 156(1) of Customs Act, 1969 is wholly unjustified, arbitrary and unlawful as done without application of mind and due consideration of facts of the case.
(f) restrain the respondents from recovery of rebate amount and personal penalty amount imposed vide following orders: Order No. Rebate plus penalty Amount.
SR2-6385/83 Rs. 988,190 SR2-7758/83 Rs. 1,024,362 SR2-2326/83 Rs.1,055,934 SR2-13261/83 Rs.1,056,900 Rs.4,125,386
2. Facts in brief leading to the petition are that the petitioner exported a consignment of "Art Silk Sarees" to Singapore under different shipping bills in the year 1983 and claimed export rebate under SROs 384(1 )/79 and 699(1 )/80. it is the case of the petitioner that Deputy Collector of Customs- Preventive after due verification of quantity and genuineness of quality and description in addition to pre-shipment inspection allowed rebate claimed on four shipping bills in all amounting to Rs.27,50,257/-. it is averred that on 12.5.1983 a laboratory test was conducted by respondent Chemical Examiner to Government of Pakistan, Customs House without any information to the petitioner disputing the goods as composed of 100% pure silk against previously declared comprising of Synthetic Art Silk Yarn. Such laboratory test has been impugned for the reason that the petitioner was not associated in the process of testing which was essential and mandatory because requirement of notice under Section 26 of Customs Act was not adhered to.
Upon findings of the laboratory test four show cause notices in terms of Section 32 of the Customs Act ware issued by respondent No.3 to the petitioner on 4.10.1984 calling upon him to deposit a sum of Rs.27,50,257/- fraudulently claimed and received by way of rebate and to show cause as to why penal action be not taken against them under clause (14) of Section 156 of the Customs Act.
Petitioner did not furnish any reply to the show cause notice nor did he appear in person but he was represented through Mr.S.M.A. Askari, Advocate. Hearing before respondent No.3 culminated into four orders in original passed by respondent No.3 of 4.2.1985 requiring the petitioner to make good the payment of Rs.27,50,257/- within seven days in addition to pay a penalty equivalent to the said amount as required in the notice.
3. The petitioner impugned the said order in C.P.No.D- 85/1985 before this Court which came up for hearing before a Division Bench of this Court on 20.7.1989 when by consent impugned order was set aside and the case was remanded to the Collector of Customs (Preventive) Karachi for deciding the case expeditiously after hearing. On remand of the case from this Court, Collector of Customs (Exports) by four identical orders in original dated 15.10.1991 dismissed the plea taken by the petitioner and held that the petitioner had misdeclared the Art Silk Sarees as Polyester Sarees which fact was fully established by a laboratory test through Analyst and Chemical Examiner. He held that the petitioner had fraudulently obtained duty draw back on export and was thus liable to repay the amounts received by him alongwith penalty equal to 50% of the amount of duty draw back erroneously paid to him.
4. These orders were impugned in appeal under Section 193 of the Customs Act before the Member Judicial Central Board of Revenue who passed order dated 19.7.1993 dismissing the appeals by a common order after hearing parties counsel and scrutiny of the record, it is in these circumstances that the present petition was filed before this Court.
5. At the hearing main contention of the learned counsel for the petitioner is that the initial show cause notice dated 4.10.1985 issued by the Deputy Collector Customs is hit by limitation as prescribed by sub-Section (3) of Section 32 of the Customs Act. Conversely Syed Tariq Ali learned Standing Counsel took the position that this being a case of deliberate and intentional mis- declaration of consignment sub-Section (2) of Section 32 is attracted which prescribes a period of three years for issuance of notice from the relevant date.
6. For proper appreciation and resolution of the controversy raised in this petition, it may be necessary to reproduce Section 32 which reads as under:- "32.-- (1) If any person, in connection with any matter of customs, --
(a) makes or signs or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other document whatsoever, or
(b) makes any statement in answer to any question put to him by an officer of customs which he is required by or under this Act to answer, (knowing or having reason to believe that such document or statement is false) in any material particular, he shall be guilty of an offence under this Section.
(2) Where, by reason of any such document or statement as aforesaid or by reason of some collusion, any duty or charge has not been levied or has been short-levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within three years of the relevant date, requiring him to show cause why he should not pay the amount specified in the notice.
(3) Where, by reason of any inadvertence, error or misconstruction, any duty or charge has not been levied or has been short-levied or has been- erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within six months of the relevant date requiring him to show cause why he should not pay the amount specified in the notice.
(4) The appropriate officer, after considering the representation, if any, of such persons as is referred to in sub-Section (2) of sub-Section (3) shall determine the amount of duty payable by him which shall in no case exceed the amount specified in the notice, and such person shall pay the amount so determined.
(5) For the purposes of this Section, the expression "relevant date" means-
(a) in any case where duty is not levied, the date on which an order for the clearance of goods is made;
(b) in a case where duty is provisionally assessed, under Section 81, the date of adjustment of duty after its final assessm ent;
(c) in a case where duty has been erroneously refunded, the date of its refund;
(d) in any other case, the date of payment of duty or charge."
7. Perusal of the orders passed by various authorities in the Customs hierarchy tends to show that there are concurrent findings to the effect that the petitioner had in fact exported Sarees made of Synthetic Knitting and deliberately declared them to be made of pure silk with a dishonest intention to obtain maximum amount of refund on such consignment. Reliance for this finding was placed on the laboratory test report prepared by the Analyst/Chemical Examiner expressing the view that the sample of dyed pieces on analysis is found to be composed of 100% pure silk.
8. Learned counsel for the petitioner vigorously assailed the authenticity and evidentiary value of this report for the reason that the petitioner was not associated with the process of laboratory test and that the Chemical Examiner in the Customs Laboratory happens to be subordinate to the respondent authorities therefore his opinion could not be free from influence. Be that as it may, this point was not directly agitated before the respondent authorities and it appears that the learned counsel for the petitioner impugned the authenticity of such report which was refuted for the reason that the samples were found to be duly sealed and signed by the parties, in case the samples available at the stage of hearing before the Collector of Customs were duly sealed and signed, identity of such samples could not be doubted. Dealing with the argument that the Chemical Examiner appeared to be an officer subordinate to the Collector of Customs and C.B.R, no request was made to the Collector for referring. The samples to any other Independent laboratory for a second opinion therefore, the petitioner is legally estopped from raising this plea before this Court for the first time. Indeed it was open to the petitioner to ask for a second opinion which having not been solicited findings of fact cannot be disturbed by this Court in the exercise of its extraordinary jurisdiction.
9. Adverting to the contention that the show cause notice dated 4.10.1984 was hit by time limit prescribed in sub-Section (3) which postulates a period of six months for issuance of such notice, suffice it to say that the facts and circumstances tend to show that this was glaring case of mis- declaration of the consignment and acting upon such declaration the Customs Authorities allowed the claim for duty draw back which having been noticed, timely action was taken in terms of sub- Section (2) which prescribes a period of three years from the relevant date for issuance of a show cause notice. Obviously this was not a case of inadvertence, error or misconstruction in the matter of refund therefore, sub-Section (3) can hardly be invoked in the circumstances of the case.
Relevant date has been defined to mean in any case where duty is not levied the date on which an order for the clearance of goods is made; in a case where duty is provisionally assessed under Section 81, the date of adjustment of duty after its final assessment, in a case where duty has been erroneously refunded, the date of its refund and in any other case the date of payment of duty or charge, in the present case duty draw back was refunded through pay orders dated 10th March, 1983 computing the period of three years from this date being relevant notice dated 4.10.1984 appears to have been issued well within time constraints postulated in law which cannot be held to be barred by limitation as contended. Reliance on the cases reported as Federation of Pakistan v.
Ibrahim Textile Mills Limited (PTCL 1993 Cl 532) and Muhammad Ashraf v. Deputy Superintendent Smuggling Squad (PLD 1977 Lahore 300) is thus completely misconceived being distinguishable on peculiar facts of this case.
10. Having held above, we proceed to examine the second contention raised by the learned counsel in support of the petition to the effect that there was inordinate delay in adjudication of the claim for this Court in the earlier petition While remanding the case to the Collector of Customs had directed the decision expeditiously which was inordinately delayed. A plain reading of the order passed by the Collector of Customs leads to an irresistible conclusion that there was a large number of cases involving same points requiring the presence of a number of counsel which had to be adjudicated after due notice to all the parties concerned and after elaborate discussion of the points raised and agitated before him. in any event direction by this Court did not fix any time limit for the decision, we are therefore, not inclined to strike down such order on this ground alone as mere expediency of a case may not always mean to a hasty and hurried decision without application of judicious mind. At any event, there has been no miscarriage of justice nor any prejudice caused to the petitioner who had already obtained the refund of- duty draw back repayment whereof was not insisted upon during the course of hearing.
11. On a careful consideration of the points raised and material placed on record we are of the considered view that by adjudicating the claim and proceeding against the petitioner in the process of hearing, respondents neither acted in excess of authority nor without jurisdiction or in violation of law. For these reasons, there appears to be no substance in this petition which must fail and is hereby dismissed.