Messrs SHAHNAWAZ ENTERPRISES vs COLLECTOR OF CUSTOMS and others

SABIHUDDIN AHMED, J.---The petitioner had imported some roughly sawn teakwood of market quality cut into blocks of different sizes from Burma. Upon the arrival of the goods the petitioner filed bill of entry and claimed that at that time they were liable to pay customs duty at the rate of 15% ad valorum under PCT Item No.1010 payable on teakwood. It roughly squared pieces. However, when the bill of entry was presented for assessment of duty the concerned Appraiser as follows:-- "inspected lot of 104 pieces and examined 5% description Myanmar teakwood cleared market quality goods shown quality as size as per bill of entry and confirmed that the goods are teak clear correctly classifiable under PCT Heading 4407.110 at the rate of 80% customs duty. Bill of entry may be referred to concerned group to apply the correct PCT through AO PAIB."

2. However, before the customs duty could be finally assessed or the petitioner be called upon to pay the same they approached this Court claiming that they were to be liable to pay duty at the higher rate of 80% payable on sawn chipped, sliced or peal wood under PCT Item 44.07 but only at a lower rate of 15%. Through an interim order, dated 25-8-1994 a consent order was passed, whereby the petitioners were permitted to get the goods released upon deposit of the disputed amount.

3. Mrs. Navin S. Merchant, learned counsel for the petitioner basically argued that the petitioner had imported roughly squared teakwood which was classifiable under PCT Heading 4403.1010 and had declared so in the bill of entry. The appropriate officer of Custom was required to assess duty in accordance with the statement made in the Bill of Entry, though it was subsequently found on examination that any information was not correct, the goods could be reassessed to duty under section 80(2) of the Customs Act or if the duty had been short levied, as a result of false declaration collusion with or inadvertence the correct amount could be claimed under section 32.

In either case however, a show-cause notice was required to be served upon the petitioner. She further argued with respect to the merits of the petitioner's case that it had been authoritatively held by the Honourable Supreme Court in Collector of Customs v. S.M. Ahmad (1999 SCM R 138) that roughly squared wood fell within Heading No.4403 and not 4407 and only wood chipped to accurate dimension would fall within the latter category.

4. Mr. Sajjad Ali Shah, learned Deputy Attorney-General, on the other hand, candidly conceded that it was not possible for him to have any cavil about the legal principle laid down by the Honourable Supreme Court. Nevertheless he seriously disputed the petitioner's assertion to the effect that the goods imported were roughly squared and did not fall under heading 44.07. He argued that the controversy between the parties was in essence one of fact that as to which of the two headings was applicable to the imported goods and this Court in the exercise of Constitutional jurisdiction does not enter into questions of appropriate classification as has been held by the Honourable Supreme Court inter alia in Collector of Customs v. New Electronics (PLD 1994 SC 363). On merits he argued that assessm ent of duty under section 80 was not required to be made on the statements in the Bill of Entry alone, but other documents in terms of section 26 also had to be considered. He drew our attention to the invoice filed by the petitioner, which while describing the goods as 'Myanmar teakwood roughly squared or half squared but not further manufactured' states that goods are importable which mentioned both headings No.44.03 and 44.07 under which goods are importable.

5. Indeed the goods having not been finally assessed, we would normally left it to the appropriate authorities under the Customs Act to do so after proper examination of the goods and taking it into consideration the evidence available. Nevertheless unfortunately the entire consignment had been cleared and even few samples were not left to enable them to do so. The parameter having been clearly laid down by the Honourable Supreme Court approving the view of the C.B.R. That wood chipped to accurate dimension would fall under PCT Heading 4407 while that roughly squared by coarse sawing would be excluded. We reserved judgment to consider what could possibly be an appropriate order to determine the controversy.

6. During careful examination of the file we noticed that in paras 2 and 4 of the memo. Of petition, the petitioners have categorically asserted that the goods imported were rough. The respondents both in their parawise comments and the counter-affidavit, dated 6-4-1995 consciously chose and to controvert the aforesaid assertion. In para. 6 of the memo. Of petitions, it was alleged that no customs duty was leviable on roughly squared teakwood. The respondents once again did not dispute the description of the goods but simply asserted that they were liable to customs duty at the rate of 80% ad valorum being classifiable under Heading 4407, the only defence set up appears to be that the goods in question consisted of sawn timber and therefore classifiable under Heading 4407. Such defence is plainly inconsistent with the law declared by the Honourable Supreme Court.

Indeed another counter-affidavit was filed on 21-11-1996 more than two years after the filing of the comments, wherein it was stated that the goods imported were and roughly squared. This must however, be treated as an afterthought and has to be ruled out of consideration inasmuch as the goods had been released more than two years ago and there is nothing to show that the deponent. Deputy Collector had any occasion to examine them.

7. In the foregoing circumstance we have no option but to allow the petition and declare that the goods imported by the petitioner are not liable to customs duty under Heading 4407. Consequently they are entitled to withdraw the amount deposited in Court. The respondents, if so advised, are free to take appropriate disciplinary action against officers who failed to protect the interest of Revenue in these proceedings.