CENTRAL BOARD OF REVENUE Versus CRAFTMAN
ORDER
AJMAL MIAN, J. ‑‑By this common order, we intend to dispose of the above three petitions as leave is sought therein from a common judgment dated 1‑3‑1990 passed by a Division Bench of the High Court of Sindh in Constitution Petitions Nos.D‑225 of 1987, D‑226 of 1987 and D‑227 of 1987 filed by the respondents in the above three petitions, allowing the same.
2. The brief facts to be noted are that the respondents exported Pole Sticks to U.K. in the year 1984 which were manufactured by using root manaucane. Upon exporting the above goods, the respondents became entitled to claim refund of the customs duty and sales tax paid by them on the import of aforesaid root manaucane for manufacturing above exported Pole Sticks by virtue of SRO No.811(1)/81, dated 23‑7‑1981 issued by the Central Board of Revenue under Section 21 of the Customs Act, 1969, hereinafter referred to as the Act. The respondents claimed the aforesaid refund on the basis of unit price of US$ 12.50 C & F. The respondents' above applications for the refund were processed by the Deputy Collector of Customs, who by three separate orders dated 29‑12‑1985 rejected the respondents' claim holding that they were guilty of offence of misdeclaration under Section 32(1) of this Act which was punishable under Section 156(1) thereof. He also concluded that the unit price of pole Sticks declared as US$ 12.50 was exaggerated and assessed the same at Rs.65 per piece. Against the above order, the respondents filed appeals before the Collector of Customs, who by his order dated 13‑5‑1986 maintained the above order of the Deputy Collector of Customs with the modification that he enhanced the price from Rs.65 per piece to Rs.67 per piece. Thereupon, the respondents filed revisions which 'were allowed. The operative portion of the order reads as follows:‑
"(d) In view of the foregoing, I am left with no alternative but to rely upon the positive evidence of physical exports of similar goods made to different countries by various exporters of Pakistan during the relevant period at prices ranging from US$ 9 to US$ 15 (C & F) per piece. It may be pointed out that lowest unit price at the rate of US$ 9 (C & F) per piece stands for cane sticks without head/mallet of the like kind and quality; meant for picking up the pole balls as per evidential record. Therefore, considering the size, quality, shape, general description and quantity of the pole sticks with mallets/heads as verified by the examination reports carried out by the concerned customs officers; the subject goods are ordered to be assessed at the rate of US$ 9.50 (nine point fifty) (C & F) per piece for rebate purposes under the relevant SRO. Accordingly, the case is forwarded to the Assistant Collector of Customs (Export Rebate) Customs House, Karachi, for disposal on merit.
This order will apply to all the identical cases bearing NosAC‑608 to 615 and AC‑594 to 600/86, AC‑616 to 621‑622 to 626/86 and 601 to 607/86 pertaining to Messrs Syed Sons and Craftsman, Karachi & Export International."
3. The Deputy Collector after the above direction of the C.B.R. did not take any action and, therefore, the respondents filed aforesaid Constitution petitions seeking direction for the implementation of the above C.B.R's. order. While the above petitions were still pending, the Deputy Collector of Customs instead of implementing the above order of C.B.R. issued fresh show‑cause notices dated 11‑1‑1987 to the respondents calling upon them to show‑cause as to why their rebate applications should not be rejected and penal action taken against them for violation of Section 32 read with clause (14) of Section 156(1) of the Act on the ground that the goods instead of exporting to U.K. as was mentioned in the shipping documents were unloaded at Dubai. Thereupon, the respondents sought amendment of the petitions for impugning the above show‑cause notices which was allowed by the High Court. After hearing the learned counsel for the parties, the High Court by the impugned common judgment allowed the above writ petitions. The petitioners have, therefore, filed the present petitions for leave to appeal.
4. In support of the above petitions, Mr Abul Khair, learned counsel for the petitioners, has contended that in the shipping documents the petitioners had declared U.K as the country of export, but factually they unloaded the goods at Dubai and, therefore, the second show‑cause notices were justified and that the respondents were entitled to no refund. The above contention has been aptly dealt with by the High Court as follows‑
.......... The arguments of the learned standing counsel that the subject goods which were meant for export to U.K. had not reached its destination but were diverted to another country, and therefore, no export rebate under the above notification were admissible to the petitioners had no merit. Firstly, no such condition is imposed under the above notification on an exporter to entitle him to claim rebate of customs duty and sales tax and secondly, the learned standing counsel was unable to point out any provision in Customs Act which provided that if the Bill of lading or the export documents filed by an exporter showed that the goods were meant for a .particular country and that such goods did not reach that country but instead were unloaded in another country it amounted to a false declaration on the part of the exporter which disentitled him to claim refund of customs duty and sales tax in accordance with the above notification."
5. MrAbul Khair, learned A.S.C. has not been able to demonstrate that the above reasons found favour with the High Court have any legal infirmity. The judgment of the High Court seems to be in consonance with law in the absence of any condition in the notification to the effect that the respondents would not be entitled to the refund of the customs duty and sales tax if they would not export to the country mentioned in the shipping documents. The petition has no merits. Leave is accordingly refused.
AA./C‑69/S Leave refused.