GHANI AND TAYUB (PVT.) LTD., KARACHI vs FEDERATION OF PAKISTAN through Secretary, Finance Division, Islamabad and 2 others

FAISAL ARAB, J.---The plaintiff has filed suit seeking declaration that where ITP value of goods is determined under section 25-B of the Customs Act, 1969, the plaintiff is entitled to secure release of its goods as per that value regardless of its declared higher value.

2. The case of the plaintiff is that he imported various consignments consisting of LLDPE film from Thailand, South Korea, South Africa and Taiwan. The minimum ITP value of the goods, that were imported, was fixed under Notification No,S.R.O.(sic)(KE)/99 dated 21-12-1999 on the basis of powers conferred by clause 1 of section 25-B of the Customs Act, 1969, but the Custom Authorities evaluated the imported goods on the declared value on the Bill of Entry as according to the custom authorities the notified C&F prices under the Notification No,S.R.O. 33(KE)/99 dated 20-2- 1999 are deemed to be the minimum prices and the consignments were bound to be assessed at the declared value if the same are higher than the notified price.

3. The parties did not lead any evidence as on 24-8-2007 when the matter was fixed for evidence, the counsel for both the parties made a statement before the Court that the matter may be decided on the basis of the documents which are already available on record. Hence, the matter was fixed for arguments.

4. The learned counsel for the plaintiff has contended that since other importers have imported consignments at a value which is near about the ITP value of goods determined under section 25-B of the Customs Act, 1969, the plaintiff must also be entitled to get its consignments released at the ITP value as specified in Notification dated 21-12-1999 and not at the actual C&F value of the import.

5. The learned counsel for the defendant No,3, on the other hand, has argued that in the case of Messrs Flying Board and Paper Products v. Deputy Collector Customs reported in 2006 SCM R 864, the Honourable Supreme Court in para. 6 of its judgment held as follows:-

6. "Since the petitioner raised the plea that the value of the goods had gone down on account of fluctuation in the country from where the goods were imported, therefore, the onus was on the petitioner to prove by evidence as to what extent, the value of the goods had decreased. No evidence was produced by the petitioner. The Customs Authorities who were vested with the power to assess the actual value of the goods for the purpose of customs duty, therefore, in the absence of any such evidence were justified in law to accept the value of the goods as declared in the Bill of Entry as the value for the purpose of customs duty to which no exception can legally be taken by the petitioner."

6. The learned counsel for the defendant has also argued that this Court in the case of Messrs Binaco Traders v. Federation of Pakistan reported in 2006 PTD 1491 held that, where legality of an act or omission is challengeable only before special forum provided under the special statute, then the same is to be adjudicated before such forum.

7. On the basis of decision of the Honourable Supreme Court, referred to above, it is evident that the plaintiff cannot seek release of the goods on the value determined under ITP when the actual value of import is higher than the ITP value. I am also fully agreeable with the submission of learned counsel for the defendant that where special forum for adjudicating the controversy has been provided, then the parties cannot agitate the same before the Court of general jurisdiction.

Therefore, the claim of the plaintiff was not maintainable in law, through this suit.

8. Foregoing are the reasons of my short order dated 23-12-2009 whereby the suit was dismissed.