BIJHAMA TRADERS Versus COLLECTOR OF CUSTOMS (APPRAISEMENT)

AJMAL MIAN, C.J. --This petition is directed against the orders dated 6-5 -1980, 27-9-1980 and 22-7-1981 passed by the Deputy Collector of Customs, Collector of Customs and Central Board of Revenue respectively.

2. The brief facts leading to the filing of the above petition are that the petitioner imported glass sheets for using it for optical lenses to March, 1979. The petitioner filed bill of entry, upon which Deputy Collector of Customs passed an order dated 4-4-1979 imposing a fine of Rs. 1,75,000 on the ground that the above item was not covered by the item for which import licence was issued. The import licence describes the items as follows:--

"Optical lenses (unframed) and rough blanks for making lenses including gradel or mercury lenses.

Against the above order, the petitioner filed Constitutional Petition No. D-1102 of 1979 in this Court, which was allowed by a judgment dated 27-1-1980 and the case was remanded to the Deputy Collector of Customs, who after the above remand, reheard the case and imposed a personal penalty of Rs. 50,000 and confiscated the consignment but gave option to the petitioner to obtain the release of consignment on payment of Rs. 1,00,000 in lieu of confiscation. Against the above order, the petitioner filed an appeal, which was dismissed by the Collector of Customs on 27-9-1980. Against the above both orders, the petitioner filed a revision, which was also dismissed by the learned Member, Central Board of Revenue by his order dated 22-7-1981. The petitioner has filed the above petition.

3. In support of the above petition, Mr. Raja Haq Nawaz, learned counsel for the petitioner, has urged as follows:--

(i) That there was no breach of the import -licence or the import policy under which the above import licence was issued.

(ii) That in any case even if it is to be accepted that there was some breach of the import policy the respondents have treated the petitioner discriminately inasmuch as 29 other importers had imported identical item under the identical import licence in respect of their consignments, no personal penalty was imposed and only 30% to 50% amount was recovered in lieu of the confiscation of the consignment.

4. As regards the first submission of Mr. Raja Haq Nawaz, learned counsel for the petitioner, that there was no breach of the import policy here in question and that the import licence covers the item which was imported, it will suffice to observe that from the record it seems that the consistent practice of the Customs department seems toy be that the import of the item in question has been treated as an item not covered by the import licence of the type in question, The petitioner himself has filed the list of 29 other importers whose consignments were not released on the same ground.

5. We cannot therefore in the writ petition hold that the above item is covered by the import licence in question.

6. Adverting to tile second submission of Mr. Raja Haq Nawaz, learned counsel for the petitioner, that in case of the other importers no personal penalty was imposed and the amount realized in lieu of confiscation was 30% to 50% of the value of consignment, it seems that the above contention is correct, which is reflected in annexure `N' to the petition. The respondents have not Filed any counter affidavit refuting the contents of annexure `N' to the petition. On the contrary the Collector of Customs in his impugned order has referred to the above list and has not denied the factum that only 30% to 50% amount was recovered in lieu of confiscation of the consignment.

We arc therefore of the view that the petitioner has not been treated alike with the other importers and he has been discriminated without any justifiable reason.

8. We would, therefore, allow the above petition and declare the imposition of the personal penalty and the amount in excess of 50% in lieu of confiscation of the goods as being without lawful authority and of no legal effect.

9. The petition stands disposed of in the above terms with no order as to costs.

H.B.T./B-138/K

Petition allowed.