1. NAZIM HUSSAIN SIDDIQUI, J.--- This appeal is directed against the judgment, dated 23-9-1997 of Customs, Excise and Sales Tax Appellate Tribunal (Lahore Bench), whereby the order, dated 30-4- 1990 of Member Judicial Central Board of Revenue, Karachi was maintained. Since at the relevant time there was no Bench at Karachi, therefore, the appeal was transferred from Karachi to Lahore, where it was decided by the impugned judgment.
2. The appellants had imported Tetrapropylene Benzene Sulphonic Acid 96-97%, hereinafter referred to as "Chemicals" and claimed assessment under P.C.T. heading 29.03, attracting 10% sale tax as was chargeable at that time. It is their case that for the last so many years, these chemicals were assessed by the Custom Department, under P.C.T. heading 29.03, which reads as under:-- "29.03 Sulphonated nitrated or nitrosated derivatives of hydro carbons:--
(a) Nitrobenzene (Mirbance oil)
(b) Others."
3. It is alleged that the respondent No,1 Collector of Custom Appriasement, without any justification applied P.T.C. heading No, 34.02 for above chemicals, which is as follows:-- "34.02 (a) Organic surface active agents.
(b) Sulponated oils other surface active preparations.
(c) Washing preparations (detergents).
(d) Cleaning preparations.
(e) Others."
4. It is also the case of the appellants that respondent No,1 had sent a Letter No,3 (66)M(CA7)/78, dated 23rd October, 1980 to Customs Cooperation Council Brussels and the final report from Brussels was communicated through letter, dated 11th March, 1981 signed by J.H. Hoguet, Director Customs Cooperation's Council which is as follows:-- "Subject: Classification in the CCCN of tetrapropvlbenzene-sulphonic acid.
5. Enclosed for your information is a copy of the final laboratory report, which I have just received, concerning the sample which your Administration furnished in 1979. As you will note the desulphonated product was found to consist of approximately 70% isomers of tetrapropylbenzene and 30% other alkylbenzines, principally undecylbenzene but including some decylbenzene and tridecylbenzene.
6. Since the produce has been found to contain some 30% of compounds which are not isomers of tetrapropylbenzene suphonic acid, I am of the opinion that it must be excluded from Chapter 29 and classified in heading No,34.02 as an organic surface-active agent."
7. In connection with above dispute, 51 Constitutional Petitions were filed before this Court, which were disposed of by a Bench of this Court and those matters were remanded as per Order, dated 8-3- 1984 PLD 1984 Kar. 302.
8. In the aforesaid reported case, it was held that the classification of the goods could be resolved by "subjective examination" of the ingredients of each consignment by the hierarchy of the Tribunals set up under the Customs Act only. Also, it was held that the opinion of Customs Cooperation Council was a piece of material which could be considered and that the Customs Authorities were under statutory duty to apply their mind and not to abdicate their authority in favor of a foreign agency. It was also held that, in order to press into service departmental practice of putting particulars construction as to bind the Custom, it was necessary to prove the existence of such practice. The petitions were remanded to the Collector of Custom for adjudication with a direction that it would be open to the parties to raise further pleas in that regard.
9. Mr. Muhammad Nasim, learned counsel for the appellants contends that question of fact decided on no evidence or on irrelevant evidence is a question of law. He has argued that directions contained in remand order were not complied with by the respondent No,1, and the perusal of order, dated 30-4-1990 showed that said respondent again solely relied upon the report of CCC Brussels. He also argued that learned Tribunal, in its order, dated 23-9-1997, upheld the finding of respondent No,1 and ignored the above directions.
10. Learned counsel for the appellants, attacking the correctness and propriety of report of CCC Brussels, contended that it was not known to the appellants that from which of those consignments the samples were drawn, nor it was notified to them, nor those samples were obtained in presence of their representatives, nor other material facts which could show the bona fide of respondent No,1 were established. Although, the respondent No,1 has claimed that the samples were drawn in presence of representatives of appellants, but, in fact, on record there is no convincing evidence to substantiate this plea. Though the covering letter of said report bears the signatures of Mr. J.H.
11. Hoguet, Director of CCC Council, but the actual report is on a plain paper and does not contain signatures of anybody. It being so, it is not established by legal evidence that said report was actually issued by CCC Brussels.
12. In the aforesaid reported case, as pointed out earlier, it was observed that the question could be resolved by "subjective examination" of the ingredients of each consignment. It appears that so was not done by the Custom Authorities.
13. Mr. S. Tariq Ali, Standing Counsel failed to point out even a single subjective examination report after the remand order. It is true that the report of CCC Brussels as a rule/practice is to be respected, but before that it was necessary to show that all legal formalities of drawing the samples were strictly followed, which is not the case here. Therefore, said report could not be taken as sacrosanct. According to the previous reports of the Custom House Laboratories such chemicals were found covered by the PTC heading No,29.03. We hold that, under the circumstances, the alleged report of CCC Brussels is not reliable.
14. In consequence, we allow this appeal, set aside the impugned judgment and hold that said chemicals are covered by PTC heading No,29.03 and the appellants are to be assessed under said heading.