' TASSADUQ HUSSAIN JILLANI, J.---The goods subject-matter of this appeal were imported in three Consignments, Bills of Entries of which are, dated, 23-12-1999, 27-12-1999 and then again 27-12- 1999. The Collector Adjudication vide Order, dated 19-8-2000 confiscated the goods as he was of the view that those were contraband goods and while doing that a penalty equivalent to 20-Million was also imposed on the appellant. This order was challenged in appeal and the learned Appellate Tribunal vide the impugned Judgment, dated 19-6-2001 partly allowed the same and in terms of para. 6 of the judgment, it held as under:--- "It is an admitted fact that three containers seized by the Customs Intelligence Staff after clearance from Faisalabad Dry Port were found to contain 32260 Kgs (88,149 yards) cut pieces of fabrics measuring between less than 2 meters and 9 meters as against cotton/cotton yarn waste declared in the bills of entry. The misdeclared goods constitute 69.45 per cent. Of the total consignment. The offending goods i,e, cut pieces of fabrics neither fall under PCT heading 52.02 relating to cotton waste nor 63.10 relating to rags of textile materials. Cut pieces of fabrics in question are correctly classifiable under PCT heading No,52.12 though these are of job lot/substandard quality being in pieces of different measurements. Heading No,63.10 according to the explanatory notes to the harmonized system of classification, covers only small cuttings of textile materials which cannot be used for their original purpose and are fit only for recovery of the fibers. We have seen the samples of fabrics in question produced by the department at the time of hearing which are undoubtedly capable of being used for their original purpose i,e, manufacture of garments. These fabrics, being of job lot/substandard quality are not importable in terms of the Import Policy Order 1999-2000 Reference to C.G.O. W of 1999, which pertains to import of second hand clothing is not relevant to this case."
2. Learned counsel for the appellant while not challenging the concurrent findings of fact with regard to the description/classification of goods has impugned the judgment of the learned Appellate Tribunal in so far according to him it arbitrarily determined the value of the goods as .96 US $ per meter. The precise submission by the learned counsel for the appellant is that the goods were imported, bills of entry were filed prior to the amendment in section 25 of the Customs Act and the value of the goods, therefore, had to be determined in the light of the criterion laid down in old subsections (1)(2) to section 25 of the Customs Act which reads as under:--- "Value of imported and exported goods.---(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 the date referred to in section 30), on a sale in open market between a buyer and a seller independent of each other.
(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 the airport or place where they are unloaded in Pakistan, or, if the aircraft first lands in Paki n at some other airport or place without unloading the goods, at such other airport pr 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.
' The learned counsel added that the value of the imported goods has to be determined in terms of its market value i,e, the price which those goods may fetch if they are put on sale in the open market. He contended that neither the Custom Department nor the Tribounal referred to any piece of evidence relatable to the price of the goods in the country of their origin which pursued then to determine the price. He added that in absence of such evidence the price declared by the appellant Importer has to be accepted as the market value of the goods in question. In support of the submissions made the learned counsel relied on 1992 SCM R 1083, PLD 1989 Lah. 89 and an unreported judgment of this Court in Custom Appeal No,12 of 2001.
3. Learned counsel for the Customs Department on the other hand defended the impugned judgment. He submitted that the goods in question were not importable items, that they fall within the negative list of the Import Policy Order pertaining to the year 1991; that the appellant Importer made a misdeclaration of the goods; that no question of law has been raised in this appeal to warrant interference in the impugned judgment.
4. We have heard the learned counsel for the parties, have gone through the precedent case law to which reference has been made and have given anxious considerations to the issues raised.
5. Admittedly, the goods subject-matter of this appeal were imported prior to the amendment in section 25 of the Customs Act brought about by a Notification S.R.O. No,1375(I)/99, dated 28th December, 1998 and it has not been disputed before us that their value had to be determined in the light of the criterian laid down in old section 25 of the Customs Act. Under old Pr visions the criterian spoke A of the value of the goods in question "in op n market" and as per the precedent law it has to be in the country -of ore in of the goods. The term "price in open market" appearing in the afore-referred Provision came up for consideration before the august Supreme Court in "Latif Brothers v. Deputy Collector Customs" (1992 SCM R 1083) and the august Court at page 1088 held as under:--- "The 'open market' here means the market in the country of origin and not at the place of importation. Thus, criterion for determination of the value of the goods should have been the prevailing commercial price in Thailand at the time of import and not the price obtaining in Singapore or other Far East Countries. Admittedly, the price list of similar goods of Thailand origin was not before the Authorities concerned when the appellant's consignment was evaluated. The onus to establish that the appellant made a misstatement was entirely on the department who failed to muster any evidence from the country of origin to belie the declared value. No such material has been placed before us even at the time of hearing of the appeal. The position would be different, if the price list from the country of origin was not at all available, despite efforts of the Departmental Authorities. But such is not the case here. In the circumstances of the case, it is difficult to hold that the appellant is guilty of making misstatement within the meaning of section 32 or of the violation of section 156(1)-9 (sic) and section 156(1)-14."
6, The learned Tribunal while fixing the price of the goods in question referred to invoices which according to it were produced before it but interestingly neither any reference has been made to their number, the country of their origin nor those were placed on record. Even at this stage the Customs Department has not placed anything on record to indicate as to on what basis/material the learned Tribunal was persuaded to fix the price as it did. In these circumstances, we are of the considered view that the price fixed by the Tribunal was without any reference to any material brought on record, was arbitrary and not in accord with the mandate of the then section 25 of the Customs Act. The impugned judgment therefore, cannot be sustained. The order of the Collector Adjudication has already been set aside by the learned Tribunal and no cross-appeal has been filed by the Customs Department. No detailed expression of opinion therefore, is called for with regard to the said order. However, in passing we may like to observe that the Collector Adjudication failed to appreciate the import of section 181 of the Customs Act which mandates that if the goods which are not importable are confiscated, the Collector Adjudication has to consider with conscious application of mind whether the option may be given or not.
7. For what has been discussed above, we are inclined to partly allow this appeal, set aside the judgment of the learned Appellate Tribunal in so far as it has fixed the value of the goods subject- matter of this appeal. The value of the goods declared by the appellant shall be considered as the value of the goods for the purposes of assessment. The fine in terms of the impugned judgment shall remain intact.