ABDUL GHAFFAR BHUNDI through Attorney vs FEDERATION OF, PAKISTAN
This matter involves a constitutional petition before the Sindh High Court regarding the classification of imported goods, specifically a "Cement Bunker Truck," under the Pakistan Customs Tariff (PCT) headings. The core legal question concerned whether the imported vehicle fell under PCT Heading 8705.9000 with a 10% customs duty as claimed by the petitioner, or under PCT Heading 8704.2290 with a 60% duty as contended by the department, and whether the department could arbitrarily depart from its consistent past practice of clearance. The Court held that the department cannot deviate from its long-standing and consistent practice of interpreting and classifying identical goods under a specific PCT heading without cogent reasoning, as such practice acquires the force of law and prevents discrimination against an importer. The key principle laid down is that consistent departmental practice regarding the classification of imported goods cannot be lightly departed from, and the customs authorities are bound to maintain uniformity in the absence of valid and justifiable reasons for a change.
- Whether the High Court has jurisdiction to examine factual aspects relating to the classification of imported goods under specific PCT headings?
- Can the customs department arbitrarily deviate from its consistent past practice of classifying identical imported goods under a particular PCT heading?
- Whether a long-standing departmental practice of interpretation regarding goods classification acquires the force of law?
- Import Policy Order, 2005
ORDER
1. Mrs. YASMIN ABBASEY, J.---Dispute in between parties relates to classification of goods and applicability of particular PCT heading on the goods imported by the petitioner titled as Cement Bunker Truck.
2. ' According to petitioner the vehicle falls under PCT Heading 8705.9000 having customs duty @ 10%.
3. Whereas according to department/respondent it falls under PCT Heading 8704.2290 leviable with customs duty @ 60%.
4. Apparently the question involved in the matter 'appears to be a question of fact that under which particular "PCT heading the vehicle imported by petitioner falls, which is outside the ambit of this Court, but it is argued by learned counsel for petitioner that when the act of respondent is found to be illegal and not sustainable in law, this Court has jurisdiction to go into the factual aspect.
5. ' According to him even prior to this consignment he had earlier imported the same vehicle. It was classified and duty was charged under PCT Heading 8705.9000. To support his arguments learned counsel has placed evidence of clearance of similar consignments under same PCT heading. The documents referred by learned counsel at pages 39, 43 and 117 of the file support the case of petitioner that even after import of subject consignment, the goods imported were cleared by the customs authorities on 11-11-2005 under PCT Heading 8705.9000.
6. ' In reply to it, it is contended by learned counsel for respondents Nos.1 and 2 that the subject consignment is banned item under Import Policy Order, 2005 therefore, any practice adopted by the department cannot change the law.
7. ' We have gone through the Appendix-C Clause-10 of Import Policy Order, 2005 and Chapter-87 of Customs Import Tariff, apparently disputed consignment does not fall within the banned items.
8. Even otherwise, learned counsel for respondents Nos. 1 and 2 except raising C this plea has not been able to justify or explain that how the vehicle titled as Cement Bunker Truck falls within banned items.
9. ' So far objections raised by the learned counsel for respondent No,3 with reference to the applicability of PCT Heading 8704.2290 on the subject consignment is absolutely different to what has been pleaded by respondents Nos. 1 and 2.
10. In contrary, petitioner has been able to establish the fact that even before this consignment and thereafter the department is clearing this very vehicle under PCT Heading 8705.9000, whereas in this particular case has been discriminated by the department. Such act has been condemned by the Honourable Supreme Court of Pakistan in 1989 SCM R 353 (Messrs Radaka Corporation and others v. Collector of Customs and another) wherein it is observed that the departmental practice of interpretation for goods under particular PCT heading having been consistently followed by the department and that has become a long-standing practice had almost acquired force of law. The practice could not, therefore, be lightly departed. Moreso because of above practice the appellants and other manufacturers of the re-rolling material had imported goods under specific licences granted by the Government of Pakistan for that purpose. Same view has been followed up by this Court in 2002 PTD 955 and 2004 PTD 2516.
11. In view of principle laid down, the department is not supposed to deviate from its past practice without any cogent reasoning.
12. ' In view of foregoing reasons, the petition is hereby allowed as prayed.
Cited by 6 cases
- ADDITIONAL COLLECTOR OF CUSTOMS vs K.S. SULEMANJI ESMAILJI AND SONS 2015 PTD 1276
- Collector Of Customs vs Shaikh Shakeel Ahmed PTCL 2011 CL. 549
- COLLECTOR OF CUSTOMS Versus Shaikh SHAKEEL AHMED 2011 PTD 495
- Collector Of Customs, Karachi vs Shaikh Shakeel Ahmed 2012 P.C.T.L.R. 347
- 2010 PTD 1335 2010 PTD 1335
- 2010 PTD 443 2010 PTD 443