1. IFTIKHAR MUHAMMAD CHAUDHARY, C.J.--- Briefly stating facts of the case are that vide memorandum of agreement, dated 25-9-1998 petitioner, Company purchased MV-Mare-I Ex- Miramare bulker converted into tanker in 1986, for the purpose of dismantling, scrapping at Gadani Shipyard. As soon as it reached at Karachi outer anchorage, petitioner made a request on I-t2- 1998 to Messrs Mackinnon Mackenzis & Company of Pakistan (Pvt.) Limited for its survey with averments that according to M.O.A. The sellers had stated that the vessel was originally built as Bulk carrier (under the name NAI Alberto). In 1986 she was converted from bulker to tanker, therefore, request was made for physical inspection of the vessel to determine its category. Copy of the request/letter was sent to Assistant Collector of Customs Gadani for information and advice with request as well to inspect the vessel at outer anchorage or soon after its beaching etc. It seems that on 7-12-1998 survey report was compiled by Lloyds Agency wherein it was observed that as per the documents available it was established that the captioned vessel had been built in 1986. However, in concluding para. It was stated that as a result of the survey "Mare-I" for all intents and purposes is structurally a bulk carrier Accordingly the report was submitted before Assistant Collector Customs House Gadani. It appears that the report was not accepted and ultimately vide order, dated 27-1-1999 the Assistant Collector observed as under:------ "Since all the documents available on record classify M.V. Mare-I as a tanker, however, Llyods certification and claim of the importer are that of a bulk carrier. The issue is likely to pose legal problems in future. Your office is requested to kindly depute a suitable representative/P-A. Group V, so that a joint examination of the vessel could be conducted and its' actual classification determined, so that the matter may be judicially resolved. Since the vessel is continuously undergoing breaking, it is requested that a joint examination be held on 1-2-1999, before the vessel is finally dismantled."
2. Although in pursuance of above observations it was suggested that joint examination of the vessel should be conducted for determining its actual classification; but petitioners did not arrange for joint survey and started its dismantling process during course whereof first instalment of taxes was paid on 28-12-1998 and before making payment of final instalment stated to be due on 26-2-1999 instant Constitutional petition has been filed with the following prayer:-- ---- "It is, therefore, respectfully prayed that this Honourable Court may be pleased to hold and declare that as per reports of Lloyd's Agency the vessel MV-Mare-I is a bulk carrier and not a tanker;
(2) Direct the respondents Nos.4 and 5 or such of them as are concerned to take into account the evidence available and assess the same far levy of Taxes as Bulk Carrier;
(3) Any other relief which this Honourable Court may in the circumstances of the care allow."
3. Mr. Abdul Samad Dogar, learned counsel for petitioner contended that Lloyds Agency vide Survey Report, dated 7-12-1998 had declared to Mare-I as Bulk Carrier, therefore, on accepting the report directions be made to the official respondents for charging duty treating it to be bulk carrier and not as a Tanker.
4. Learned counsel further stated that as far as report of Lloyds Agency is concerned it was bound to be accepted being an authentic document issued by an authorised agency.
5. On the other hand Syed Ayaz Zahoor, learned counsel contended that survey report of Lloyds Agency is not acceptable to the official respondents as at the time of survey of Mare-I neither respondents nor their representatives were associated, therefore, this report cannot be made basis for treating to Mark-I as Bulk Carrier instead of Tanker. It was also argued by him that the Assistant Collector Customs, Customs House, Gadani vide order, dated 27-1-1999 (relevant para. Wherefrom has been reproduced hereinabove) has suggested for conducting a joint examination of the vessel, but this suggestion was not accepted by the petitioner, as such for this reason as well the respondents are not bound to accept the report of Lloyds Agency, dated 7-12-1998 obtained by the petitioner without associating to the respondent in the process of survey.
6. Mr. M. Riaz Ahmed, learned counsel for intervenor Messrs Bhitai Traders Octroi Contractors supported the arguments of learned Deputy Attorney---General and prayed that respondents be allowed to fix the value of Mare-I considering it to be a Tanker enabling the Octroi Contractor to charge octroi tax on such situation.
7. We have heard parties counsel at length and have also gone through the relevant documents so made available. At the outset it is to be noted that according to the schedule of payment of tax under the Customs Act, 1969 competent Authority has fixed different prices for determining value of the vessel to recover customs duties. As far as the Tanker is concerned its value for calculating Customs Duty Per LTD is higher than the value per LTD of the Bulk Carrier, therefore, from this point of view petitioners are insisting to treat Mare---I as a Bulk Carrier.
8. It is to be noted that Collector of Customs and Central Excise, Quetta at Hub vide Public Notice No.S.I./MISC/239/89-G had decided that in respect of vessels and barges the survey report of Lloyds Agents and authorised agents of American Bureau of Shipping shall be acceptable. This order further provides that in case Customs House Gadani desires to verify the documents of survey produced by the importers, the same will be referred to Messrs Lloyds Agency or A.B.S. As the case may be. In the instant case admittedly no reference by the Assistant Collector of Customs Gadani was made to Lloyds Agency for verifying survey report produced by the petitioner because as per letter, dated 1-12-1998 petitioner itself made a request to Messrs Mackinnon Mackenzis & Company of Pakistan to survey the vessel at anchorage and soon after its beaching in order to ascertain its category, however, copy of this letter was sent to the Assistant Collector for information with the request that he should also request for survey. A Perusal of the survey report indicates that this Company made a request to the Lloyds Agency for the purpose of survey of Mare-I which was carried out without associating the Assistant Collector Gadani, therefore, such report has no binding effect on the Assistant Collector. Even otherwise this survey report indicates that as per the documents available on record, it was established that the vessel had been built in Italy in 1967 as a gearless Bulk Carrier and was converted into a Tanker in Italy in 1986.
9. At this juncture reference to M.A.O. Between the seller and the petitioner, dated 27-9-1998 also suggests that the petitioner had purchased a Tanker converted from Bulk Carrier in 1986. As it has been pointed out hereinabove that the petitioner got conducted survey of the Mare-I in absence of the petitioner and when Assistant Collector Customs Gadani vide letter, dated 27-1-1999 suggested that joint examination of the ship be carried out, to resolve the dispute petitioner did not accept this offer, most probably for the reason that in the meanwhile they had started dismandling of the vessel and had also paid till than two instalments towards the customs duty, therefore, it was not possible for them to get examined the vessel jointly and under the circumstances filed instant petition with the request that survey report of Lloyds Agency, dated 7-12-1998 be accepted. As it has already been observed hereinabove that report is not acceptable because the Assistant Collector is not party to it.
10. It is equally important to note that as per Public Notice No. 1/90 issued by Letter No.SI/Misc/239/89- G, dated 30-1-1990 for the purpose of assessment of the value of the vessel the builders plan, or capacity plan, or builder's certificate evidencing LDT or Trim and Stability Book are considered to assess the value. It appears that in the instant case the respondent had not presented any of these documents before the Assistant Collector Customs Gadani to establish that as per the builder's plan or capacity plan the Mare-I is a Tanker, but not bulk carrier, therefore, in absence of these documents it was not possible for the respondent Assistant Collector Customs to accept the survey report of Lloyds Agency.
11. From the above discussion one can safely conclude that, in fact, the respondent Company was not interested to carry out it in examination of the ship because till the time when such suggestion was given to it by the Assistant Collector Customs the process of dismantling of Mark-I had commenced during course whereof two instalments towards the customs duty etc. Had been paid by the petitioner, but before payment of final instalment they took a chance by filing instant Constitutional petition with the prayer reproduced hereinabove, namely, that the survey report of Lloyds Agency be accepted. In our opinion the Assistant Collector Customs in not accepting the report had not transgressed its authority in any manner. However, if the petitioner at all had a genuine case to prove that Mare-I is not a tanker, but a bulk carrier, there was no impediment for them to agree for joint examination. It has been already observed hereinabove that as per M.O.A., petitioner had purchased a Tanker notwithstanding the fact whether it was converted from the Bulk Carrier or not, but admitted fact as per this document remains that Mare-I was a Tanker.
12. Before parting with the judgment, the above discussion can also be summed up by considering that admittedly there is a disputed fact between the petitioner and respondent because former alleges that Mare-I is a Bulk Carrier whereas case of the latter is that it is a tanker and both the parties to advance their claims have made reference to different documents namely, memorandum of agreement between seller and the petitioner, dated 27-9-1998 and the survey report of Lloyds Agency, therefore, factual controversy cannot be resolved in exercise of Constitutional jurisdiction.
13. For the foregoing reasons we are of the opinion that petition merits dismissal. Parties are left to bear their own costs.