ABBAS STEEL INDUSTRIES LTD. Versus COLLECTOR OF CUSTOMS (APPRAISEMENT), CUSTOMS HOUSE, KARACHI

SAEEDUZZAMAN SIDDIOUI, J.‑‑ The petitioner imported a vessel 'KODIAK' for scrapping purposes. The Import General Manifest in respect of the aforesaid vessel was filed with the Customs authorities on 9‑6‑1982 and it was registered as I.G.M. No.89 of 1982. On the same date the petitioner submitted a bill of entry for clearance of the vessel under section 79 of the Customs Act which bears Machine No.00133, dated 9‑6‑1982. It is alleged by the petitioner that the aforesaid bill of entry submitted by them through their Clearing Agent for clearance of the vessel was later on cancelled by an oral order in view of the Customs House Notification No.C.89/58‑Import‑Part‑1, dated 6th June, 1982. It is further alleged. by the petitioner that they were directed to file a fresh bill of entry which they submitted on 22‑6‑1982. The Customs authorities assessed the customs‑duty payable on the C.I.F. value of the vessel at 50% ad valorem plus 5% surcharge. It is an admitted position in the case that the customs‑duty was enhanced 30% ad valorem to 50% ad valorem on C.I.F. value of the goods under Finance Bill of 1982 which was introduced in the Assembly on 14‑6‑1982. This bill besides increasing the ad valorem rate of customs‑duty also imposed surcharge at 5%. The petitioner paid the customs‑duty and surcharge under protest on or about 28‑6‑1982 and thereafter applied for refund of the excess amount of the customs‑duty, which was calculated at Rs.51,46,741 on 30th October, 1982. The Assistant Collector of Customs rejected the claim of the petitioner and held that the customs‑duty and surcharge were rightly calculated according to the rates applicable on the date of filing of the second bill of entry by the petitioner. The order of the Assistant Collector of Customs was upheld in appeal by the Collector of Customs and a Revision against the order of Collector of Customs also failed.

2. Mr. Sharaf Faridi, learned counsel for the petitioner, contends before us that the original bill of entry having been filed by the petitioner on 9‑6‑1982 the petitioner were entitled to pay the customs‑duty as prevailing on that date in accordance with section 30(b) of the Customs Act, 1969. It is contended by the learned counsel that under sections 32 and 79 of Customs Act, 1969, a bill of entry for clearance of a consignment for home consumption could be filed at any time after filing of Manifest of the goods and as such the bill of entry submitted by them on 9‑6‑1986 was perfectly in order. It is accordingly, submitted by the learned counsel that the cancellation of the original bill of entry submitted by them before the Customs authorities for clearance of the vessel on 9‑6‑1982 was arbitrary and, therefore, filing of the second bill of entry dated 28‑6‑1982 which was under compulsive circumstances could not deprive the petitioner from his right to claim the refund of the customs‑duty recovered by the Customs authorities in excess of the rate prevailing on the date of the filing of first bill of entry.

3. From the orders passed by respondents Nos.3 and 4 respectively, in the case it is quite clear that there is no dispute with regard to the date of filing of the first bill of entry by the petitioner before the Customs authorities. Both the Tribunals, namely respondents Nos. 3 and 4, however, rejected the appeal and revision of the petitioner respectively on the ground that as a result of withdrawal of the first bill of entry filed by the petitioner on 9‑6‑1982 they were disentitled to claim any advantage with regard to the payment of duty prevailing on that date. The petitioner all along during the proceedings of the case before the respondents categorically asserted that the bill of entry filed by them on 9‑6‑1982 was cancelled under the oral order of the Assistant Collector of Customs and they were compelled to file a second bill of entry after the introduction of the Finance Bill of 1982 in the Assembly. This fact has not been disputed either in the orders passed by the respondents in the case or by filing any counter‑affidavit in this petition. The endorsement made by the petitioner's clearing agent at the time of cancellation of their first bill of entry dated 9‑6‑1982 reads as follows:‑

"Attention is invited to your verbal orders for cancellation of this B/E dated 9‑9‑1982 in view of Public Notice No.6/82(a), dated 6‑6‑1982. 1 submit cancellation letter dated 14‑6‑1982 for the same, with the following reservations to safeguard the client's interest:‑

(1) That the sections 30 and 79 of the Customs Act, 1967 do not incorporate the word "Actual Arrival" of the goods and inter alia incorporate only conditions of the delivery of the Manifest as well as of B/E on a particular date. As such cancellation in fact is not required.

(2) That keeping in view your orders we submit this letter with reservations.

(3) That we reserve the right to claim refund of differential duty amount in between the old and new rates of duty, if the duty is increased, on the grounds of and evidence of another case in which the duty would have been charged on old rate by the customs, either through litigation or in normal course.

(4) That we do not want to put customs in undue litigation and save our time, we submit letter for cancellation of the B/E with above reservations.

4. From reading of the above endorsement on the bill of entry it is quite clear that the withdrawal of the first bill of entry by the petitioner was not voluntary but it was under the verbal order of the Assistant Collector of Customs who had directed cancellation of the bill of entry in view of the public notice dated 6‑6‑1982. The endorsement made by the petitioner's clearing agent on the bill of entry dated 9‑6‑1982 is neither disputed in the order of the respondents A passed in the case nor it is denied here before us by filing any counter‑affidavit. In these circumstances, we are of the view that the cancellation and withdraw of the bill of entry dated 9‑6‑1982 by the petitioner was involuntary and was on account of the verbal orders of the Customs authorities for cancellation of the bill of entry in view of the public notice dated 6‑6‑1982. Section 79 of the Customs Act which regulate filing of bill of entry for clearance of the consignment for home consumption or for warehousing of the same reads as follows:‑

"79. Entry for home‑consumption or warehousing .‑‑(1) The owner of any imported goods shall make entry of such goods for home‑consumption or warehousing or for any other approved purpose by delivering to the appropriate officer a bill of entry thereof in such form and manner and containing such particulars as the Board may direct: Provided that, if the owner makes and subscribes declaration before the appropriate officer to the effect that he is unable for want of full information to make a complete entry of any goods then the said officer shall permit him, previous to the entry thereof, to examine the goods in the presence of an officer of customs or to deposit such goods in a public warehouse appointed under section 12 without warehousing the same pending the production of such information.‑‑

(2) A bill of entry under subsection (1) may be presented at any time after the delivery of the manifest:

Provided that the (appropriate officer) may, in any special circumstances, permit a bill of entry to be presented before *the delivery of the manifest:‑

(3) If an officer not below the rank of Deputy Collector of Customs is satisfied that the rate of customs duty is not adversely affected and that there was no intention to defraud, he may in exceptional circumstances and for reasons to be recorded in writing permit substitution of a bill of entry for home‑consumption for a bill of entry for warehousing or vice versa."

It is quite clear from subsection (2) of section 79 reproduced above that a bill of entry under subsection (1) may be presented at any time after the delivery of the manifest. Section 30 of the Customs Act which speaks of the date for determination of value and rate of import duty provides that in case of goods cleared for home consumption under section 79 of the Act the value and rate of duty of the imported goods will be that which is determined and prevailing on the date of presentation of the bill of entry under section 79 of the Act. Reading the two sections together there can* be no doubt that the petitioner in the case was entitled to the clearance of the vessel imported by them for scrapping on the basis of the customs‑duty which was prevailing on 9‑6‑1982 when they presented their first bill of entry for clearance of the vessel for home consumption. In these circumstances, the subsequent submission of the bill of entry by the petitioner on 22‑6‑1982 which was certainly not voluntary could not deprive the petitioner from their vested right to pay duty on the basis and at the rate prevailing on 9‑6‑1982.

5. We accordingly accept this petition and declare the orders passed by the respondents as without lawful authority and of no legal effect. We further declare that respondents were entitled in the case to charge the customs‑duty on the vessel imported by the petitioner according to rate prevailing on 9‑6‑1982. The respondent are accordingly directed to refund the amount of excess customs‑duty, if any, realised by them. There will be no order as to costs as the respondents have failed to appear and contest the case.

AA./M‑534/K Petition accepted.