Customs Rules, 2001‑‑‑

---‑R.13(b)‑‑‑Baggage Rules, 1985, R.10(13)‑‑‑Import Export Policy Order, 1999‑2000‑‑‑Customs General Order No.5 of 1998‑‑‑Establishment of Office, of Federal Tax Ombudsman Ordinance (XXXV of 2000), S.9‑‑‑Levy of‑‑‑Personal Customs Duty‑‑Professional goods or household effects‑‑‑Photostat machines‑‑‑Photostat machines were confiscated rather than to release them on payment of customs duty on the ground that the same were neither an item of personal wear nor a household effect as this was not professional equipment or a tool and in the trade parlance it was known as office equipment which action was confirmed by the Appellate Authority‑‑‑Validity‑‑‑Customs General Orders were meant to prescribe procedures for specific work situations and the job descriptions and the duties and functions of officials of the Department‑‑‑Said orders (or the Standing Orders issued by the Collectors) were not meant to amend, modify or restrict application of rules notified under the customs law; where it was intended to issue a ruling for guidance of the staff as well as the public, notice was issued‑‑ Restrictions on imports in the baggage should have been incorporated in the Baggage Rules because the passengers were not expected to know the Departmental instructions‑‑‑Ruling, vide Customs General Order No.5 of 1966, without issue of public notice and without incorporating its restrictive policy in the Baggage Rules, was not justified specially in the liberal import regime‑‑‑With the introduction of liberalized dutiable allowance, clearly it came in direct conflict with the notified Baggage Rules and Central Board of Revenue rescinded same on 18‑6‑2001‑‑ Department significantly observed that complainant did not seek clearance of the Photostat Machines as regular imports; he had instead filed a baggage declaration but the fact remained that baggage declaration too was a legal and recognized clearance document on the basis of which the adjudication process was set in motion‑‑‑Customs Authorities should have released the machines on payment of duty and taxes‑‑‑If the Authorities felt uncomfortable merely because the Photostat Machines were declared as a baggage item, they should have advised the passenger to file a bill of entry‑‑‑Appellate Authority could have directed the appellant to do so instead of upholding the unjust order of confiscation‑‑‑Clearly the administrative restriction under Customs General Order No.5 of 1988 (eventually rescinded) was in conflict with the notified Baggage Rules as it was not incorporated in the Rules‑‑‑Such course was inconsistent with the liberalization of (import policy) and the Baggage Rules which allowed the international passengers to bring personal or professional or household effects on payment of duty and taxes without limit‑‑‑Application of this outdated restriction caused avoidable hardship to the complainant ‑‑‑In order to redress the genuine grievance of an expatriate Pakistan; Federal Tax Ombudsman recommended that Central Board of Revenue may re‑consider its decision and take appropriate action.

Syed Sakhawat Ali, Representative for the Complainant.

Muhammad Iqbal Muneeb, Deputy Collector of Customs (Preventive).

Saleem Akhtar, Chief Law Officer.

FINDINGS/DECISION

The complaint has been filed against the confiscation of two old and used Photostat machines brought by the complainant in his un accompanied baggage. The complainant stated that the Customs Authorities at first worked out the duty and taxes on the machines and when he was ready to deposit the amount he was informed that the machines had been confiscated. He filed an appeal before the Member (Legal), C.B.R. who rejected it and upheld the decision of the Superintendent of Preventive Service in violation of the Import‑Export Policy Order 1999‑2000.

2. The complainant stated that his unaccompanied baggage comprised one new washing machine, one new refrigerator and two old and used photocopiers. When the baggage declaration was filed, the case was referred to the Appraisement section for valuation. After appraisement of the value, the refrigertator and the washing machine were released but the photocopiers were detained under a receipt and the case was referred to the Superintendent, Preventive Service, East Wharf. The complainant pointed/submitted to the Superintendent at the time of hearing that the Foreign Exchange Regulations, the Import Policy and the Import and Export Procedure had been amended and photocopier was importable under free list. He wanted to pay the customs dues under sub- rule (b) of rule 10 of the Baggage Rules under which "Personal or professional goods or household effects whether used or not, acquired abroad, shall be allowed on payment of customs duty and taxes without limit". He stated that he was running a photostat shop abroad and had brought the goods in his possession to Pakistan. He requested that the goods be released to him under Import Export Policy Order, 1999‑2000 which provided for release of such goods on payment of duties and taxes without limit.

3. The Secretary (Legal), C.B.R., replied that no allegations had been levelled in the complaint. The Superintendent of Customs had ordered the confiscation of the Photostat machines as they did not constitute baggage items in the light of the Custom General Order No.5 of 1988. The Member (Legal) heard the appeal of the complainant and upheld the order of confiscation. The Order‑in‑Appeal was a quasi‑judicial order and had been passed in accordance with law. The complainant has not pointed out any maladministration in his complaint and the complaint be filed.

4. The complainant's representative reiterated, during the hearing of the complaint, that under rule 10(B) of the Baggage Rules, goods of personal professional or household effect, whether used or not, acquired abroad were allowed release on payment of duty and taxes without limit. The confiscated photocopiers should have been released under rule 10(B). The complainant was a mechanic by profession, he worked in a mechanic shop in Dubai and when he returned to Pakistan he brought two old and used photocopiers with the intention of repairing and using them himself or gifting to his brother. He requested for release thereof on payment of duty and taxes.

5. The Deputy Collector of Custom stated that under Customs General Order (CGO) No.5 of 1988, C.B.R: and given the ruling that "Photostat machine is neither an item of personal wear nor a household effect. Besides this, it is not a professional equipment or a tool". Therefore, "the release of items like Photostat machine is not the permissible under the Baggage rules". This CGO was rescinded vide C.B.R. letter, dated 18‑6‑2001. However, it was operative when the Superintendent ordered the confiscation of the Photostat machines. The Member (Legal) C.B.R., relying on the same ruling, rejected the complainant's appeal, vide order dated 1‑2‑2002, on the ground that under C.G.O. 5 of 1988 "Photostat machine is neither an item of personal wear nor a household effect. Besides this is not professional equipment or a. tool. In the trade parlance it is known as office equipment". These machines did not constitute bona fide baggage. He mentioned in the order that the complainant had filed a baggage declaration for clearance of his unaccompanied baggage and did not approach the Customs Authorities to seek clearance of these machines as regular imports.

6. The Member (Legal) has primarily relied on C.B.R's. ruling vide C.G.O. 5 of 1988 that the Photostat machine was not permissible under the Baggage Rules. It is significant that the ruling was given by the C.B.R. in 1988 when the import of goods through trade channels and in the baggage was highly restricted and regulated. Under the Baggage Rules too the release of goods on payment of duty and taxes was restricted up to a limited value. In the 1990s the import policy, the licensing system and the baggage rules were extensively liberalized. The dutiable allowances admissible to the passengers referred by the complainant, now contained in sub‑rule (b) of rule 13 of the Customs Rules, read as under:

Personal or professional goods or household effects whether used or not, acquired abroad shall be allowed on payment of customs duty, and other taxes without limit subject to the condition that the same is paid in Pak currency or in foreign exchange acceptable to the designated banks branches.

7. The Customs General Orders are meant to prescribe procedures for specific work‑situations and the job descriptions and the duties and functions of the officials of the Department. These orders (or the Standing Orders issued by the Collectors) are, not meant to amend, modify or restrict application of rules notified under the customs law. Where it is intended to issue a ruling for guidance of the staff as well as the public, the amendments in the rules should be notified and a public notice issued. The restrictions on imports in the baggage should have been incorporated in the Baggage Rules because the passengers are not expected to know the Departmental‑ instructions. The ruling, vide C.G.O. 5 of 1988, without issue of public notice and without incorporating its restrictive policy in the Baggage Rules, was not justified specially in the liberal import regime. With the introduction of above liberalized dutiable allowance, clearly it came in direct conflict with the notified Baggage Rules and, as mentioned by the Deputy Collector of Customs, C.B.R. rescineded it on 18‑6‑2001.

8. The Member (Legal) significantly observe that Complainant did not seek clearance of the Photostat machines as regular imports, he had instead filed a baggage declaration. But the fact remains the baggage declaration too is a legal and recognized clearance document, on the basis of this document the adjudication process was set in motion. The Customs Authorities should have released the machines on payment of duty and taxes. If the Authorities felt uncomfortable merely because the Photostat machines were declared as a baggage item, they should have advised the passengers to file a bill of entry. The Member, at the appeal stage, could have directed the appellant to do so instead of upholding the unjust order of confiscation.

9. Clearly the administrative restriction under C.G.O. 5 of 1988 (eventually rescinded) was in conflict with the notified Baggage Rules as it was not incorporated in the rules. It was inconsistent with the liberalization of (import policy and) the Baggage Rules which allowed the international passengers to bring personal or professional or household effect on payment of duty and taxes without limit. The application of this outdated restriction caused hardship avoidable to the complainant.

10. In order to redress the genuine grievance of an expatriate Pakistani, it is recommended that C. B. R. may reconsider its decision, take appropriate action, and inform this office within a month.

C.M.A./545/FTOOrder accordingly.