COLLECTOR OF CUSTOMS, CUSTOMS HOUSE, LAHORE and 3 others vs Messrs

' SH. IJAZ NISAR, J.---This appeal by leave of the Court is directed against the judgment of the Lahore High Court, Lahore, dated 19-3-1997, passed in Writ Petition No,14470 of 1993, whereby the Constitutional petition filed by Messrs S.M. Ahmad & Company (Pvt.) Limited, the respondent herein, was accepted.

2. The relevant facts are that the respondent imported wood from Singapore/Malaysia in the year 1993. On its arrival, the respondent filed Bills of Entry for clearance. After examination, the Custom officials classified the wood under P.C.T. Heading 44.07 instead, of Heading 44.03, as claimed by the respondent, and levied the duty, accordingly. The respondent-importer represented against the said classification to the Collector of Customs, Lahore, requesting him to refer the matter to Chief of Customs, C.B.R., Islamabad, for determination of the correct assessment. Acceding to his request the matter was referred to the C.B.R. Which by the letter dated 5-9-1993 confirmed the assessment made by the Custom officials of the Dry Port, Lahore, declaring that the wood in question fell under P.C.T. Heading 44.07.

3. The respondent-firm then invoked the Constitutional jurisdiction of the Lahore High Court to challenge the assessm ent carried out by the Custom Authorities reiterating its stand that the imported timber being rough was assessable under P.C.T. Heading 44.03.

4. The Custom Authorities contested the writ petition. By judgment, dated 19-3-1997, a learned Single Judge in Chambers accepted the writ petition and declared the assessment carried out by the Custom Authorities under P.C.T. Heading 44.07 instead of 44.03 to be illegal and without lawful authority.

5. Feeling aggrieved, the Collector of Customs and others petitioned to this Court. Leave was granted on 16-5-1997 to consider the following points: - "That the writ petition was not maintainable, in that, the respondent had an alternate remedy by way of Appeal/Revision under section 196 of the Customs Act, 1969 and had not exhausted that remedy; ' that the evaluation/classification of the imported goods is the sole domain of authorities and functionaries under the Customs Act. The High Court cannot substitute its findings by its own findings; ' that the petition in the High Court raised only questions of fact for the determination of which actual physical examination of huge logs of wood was necessary. A decision on a question of fact without any evidence lawfully taken or without actual physical examination is beyond the jurisdiction of the High Court; and ' that the learned Judge in Chambers has misconstrued the provisions of P.C.T. Heading 44.07 and has also failed to appreciate the explanatory notes attached to it while passing the impugned order."

6. The question of maintainability of the writ petitions, without first availing of remedies of appeal/revision under the Customs Act, was also raised before the High Court and overruled on ground that the respondent having failed up to C.B.R. To convince them that the assessment carried out by them was wrong and was left with no remedy except to invoke the Constitutional jurisdiction of the High Court. The learned Judge further observed that an aggrieved party if found entitled, was to be allowed the relief without undergoing the rigours of technicalities of procedure.

As regards the objection that the classification/evaluation of goods, being a question of fact, fell within the sole domain of the Custom Authorities, the learned Judge in Chambers relying on Messrs Delite House Ltd. v. Assistant Collector, Customs (1988 CLC 5) observed that being a mixed question of law and fact the High Court could look into the matter. So far as the question of classification of the goods in question was concerned, the learned Judge observed that since the word ' rough' had not been defined or restricted in the Pakistan Customs Tariff Code, it had to be given its ordinary dictionary meaning. Reliance was also placed on the report of Director, Forest Products Research, Pakistan Forest Institute, Peshawar, and the Circular dated 12-8-1996 issued by the C.B.R. Which supported the assertion of the respondent.

7. We have heard the learned Deputy Attorney-General on behalf of the appellant. He has reiterated the points urged before the High Court on behalf of the appellant about the maintainability of the writ petition, classification of the wood and the P.C.T. Heading concerned.

8. Learned counsel for the respondent has strongly contested the appeal and has cited a number of precedents of the superior Courts in support of his submissions.

9. As regards the maintainability of writ petition in the presence of alternate remedy, it is a settled proposition of law that it is no bar if such remedy is only illusory in nature, as observed in Gulistan Textile Mills Ltd. v. Pakistan (1983 CLC 1474). No useful purpose would have been served if the respondent had been required to avail of the remedy of the appeal or revision because the highest body i.e, the C.B.R. Had already expressed its opinion against the respondent. A reference may be made to Messrs Usmania Glass Sheet Factory Limited, Chittagong v. Sales Tax Officer, Chittagong (PLD 1971 SC 205) wherein it was observed that where a dispute arises between the parties in respect of fiscal right based on a statutory instrument, it can be determined in writ jurisdiction.

After the decision given by the C.B.R. It would have been difficult for the Federal Government to take a contrary view about the assessm ent/evaluation of the wood imported by the respondent, and in these circumstances no exception could be taken to the respondent's invoking Constitutional jurisdiction of the High Court. Classification of goods is not always a pure question of fact and being a mixed question of fact and law, the High Court is possessed of jurisdiction to adjudicate upon such question in Constitutional jurisdiction in the light of dictum of the Supreme Court in M.Y.

Khan v. M.M. Aslam and 2 others (1974 SCM R 196) and Messrs Delite House Ltd. v. Assistant Collector, Customs (1988 CLC 5).

10. To determine which of the two relevant P.C.T. Headings was applicable to the wood in dispute a comparative study of the two would be necessary. Heading 44.03 deals with the rough wood.

Explanatory notes given under this heading state that the wood includes timber in the natural state as helled, usually with the branches lopped off and such timber stripped of its outer or both its outer and inner bark or from which merely the rough protuberances had been removed, and includes roughly squared wood which consists of trunks of trees, the round surfaces of which have been reduced to flat surfaces by means of axe or adze or by coarse sawing, to form wood of roughly rectangular including square cross section. As against this, wood falling under P.C.T.

Heading 44.07 is described as the one obtained by the use of chipping machines to extremely accurate dimensions, a process which results in a (sic) better than that obtained by sawing rendering subsequent planning unnecessary. It specifically excludes wood roughly squared e.g. By coarse sawing. Now to determine the, nature of the wood imported by the respondent, a reference may be made to the Inspection Notes made by the officials of the Customs Department. According to the principal appraiser it was kempas wood ungraded due to rough condition with cracks and cuts on it, while the Deputy Collector, Customs, opined that since the wood was not as rough as the Heading 44.03 implied the same should be classified under Heading 44.07. Instead of making a casual approach, the Deputy Collector should have given a detailed reasoning in support of his finding that the wood attracted P.C.T. Heading 44.07. Had he done so, it would have been easier for other authorities to arrive at some definite conclusion. The wood, could have either been rough or fine rendering further planning unnecessary, but the use of words "not as rough as Heading P.C.T.

44.03 implied" takes us nowhere and makes the matter uncertain and ambiguous. On the other hand, report of the Principal Appraiser is more clear stating that the wood in question was in rough condition with cracks and cuts thereon, from which an indisputable inference can be drawn that it was in rough condition requiring further planning to bring it within the description of P.C.T. Heading 44.07.

' The above conclusion also finds support from the letter dated 12-8-1996 issued by the C.B.R.

Stating that the wood chipped to extremely accurate dimensions would fall under P.C.T. Heading 44.07 while the wood roughly squared by coarse sawing would stand excluded from the said P.C.T.

Heading.

It is a settled proposition of law that fiscal provision should be interpreted to the benefit of the subject and benefit of any ambiguity should go to him. (See Messrs Delite House case cited supra).

11. In view of the above discussion, we uphold the judgment of the Lahore High Court, dated 19-3- 1997, declaring that the wood imported by the respondent fell under P.C.T. Heading 44.03 instead of 44.07, and in consequence dismiss the appeal, leaving the parties to bear their own costs. The Bank Guarantees furnished by the respondent shall stand discharged.