Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.157, 181 & 202‑‑‑Confiscation of imported goods or option to pay redemption fine‑‑‑Authority issued show‑cause notice to importers and clearing agents to the effect that under the guise of importing `yellow peas' which were not dutiable, they had imported goods in containers which was dutiable to avoid payment of duty and had deprived the Government of the customs duty and other taxes‑‑‑Authorities took into custody containers and gave option to importers either to get the containers released after paying redemption fine as determined or to have containers confiscated‑--Importers had categorically stated at the bar that they did not wish to get said containers released and question of payment of redemption fine would not arise‑‑‑Authorities, in view of said statement of importers, would be free to do what they liked with the containers in their custody and would not claim redemption fine from the importers.

PLD 1974 SC 5; PLD 1988 Lah. 177; PLD 1989 Kar. 391 and PLD 1992 SC 291 ref.

Naeem Ahmed for Petitioners.

Raja Muhammad Iqbal and Syed Zaki Muhammad, A.A‑G. for Respondents.

Date of hearing : 20^th April, 2000.

JUDGMENT

ZAHID KURBAN ALAVI, J.‑--This petition has been filed wherein it has been, prayed as follows:‑‑

(a)That this Hon'ble Court be pleased to declare that the Order‑in -Original and judgment enclosed as Annexures "I" and "K" passed by the respondent No.2 and respondent No.3, A respectively are without lawful authority and of no legal effect.

(b)An order restraining the respondents, their officers, servants and all those claiming through or under them from taking any step demanding illegal fine or 'its collection and/or enforcement of the said orders and judgment based on the surmise and presumption.

Briefly the facts of the case are that the vessel M.V. "Arm Khachaturyan" carrying 11 containers covered under Bills of Lading Nos. 3SJ26L083 and 3SHJ26L084 arrived at Karachi on or about 29‑11- 1994 and thereafter discharged these 11 containers with seal intact into the custody of KTP, for onward delivery to the consignee Sahil International 242 Hashmi Electronic Centre, Abdullah Haroon Road, Karachi. As per bill of lading the said 11 containers were accepted for carriage from the port of Dubai to Karachi on the basis of "Shipper's Load, Stow and Count" FCL and CY/CY contract of affrelightment. It is submitted that entire particulars inserted in the bills of lading Were declared by the shippers as the consignment was stuffed into the said containers at the shippers/suppliers premises as is evident from the bill's of lading referred to abode and the invoices. It is therefore; submitted that the petitioner at to 'stage participated in the stuffing 'of the consignments stuffed into the containers by the shippers. According to the petitioners the bills of lading had incorporated on it a rubber Stamp to the effect Shippers Load stow and count 5X20 feet FCL containers STC. According to them by virtue of this statement incorporated in the bills of lading the carriers were in fact exonerated from the knowledge of the contents in the containers and were not aware as to what was packed in it. On the arrival of Vessel at Karachi the clearing agents by the letter, dated 23‑11‑1994 requested that the cargo contained in the containers may not be de‑stuffed. Thereafter direct delivery order was to be given by letter, dated 14‑11‑1994. In this letter the numbers of the relevant container were given.

The respondent No.2. issued show‑cause notice to the petitioner as well as importers and the clearing agents. In this show‑cause notice it was stated that under the guise of importing Yellow Peas the importer had stuffed in the container items which otherwise would have been not importable or even if they were importable then they would be liable to pay duty and other charges Since Yellow Peas were not dutyable therefore, an attempt was made to bring into the country the items mentioned in detail in the show‑cause notice and deprive the Government of customs duty and other taxes amounting to Rs.4,151,658. Time was given to all the parties to submit the written reply and also attend hearing. The petitioner was also given a notice and he was asked to reply why the containers need not be confiscated as they had been used for bringing in the goods into Pakistan.

A reply was submitted whereafter Order‑in‑Original No.36 of 1997 was passed. By this order containers were ordered to be confiscated under section 157 of the Customs Act:‑An option was given to the lawful owner to get the same released against the redemption fine of Rs.50,000 per container. Thereafter the matter reached before the Custom, Excise and Sales Tax Appellate Tribunal whereby vide their detailed order the Tribunal reduced the redemption fine from Rs.50,000 to 30,000 per container.

This order of the Tribunal was passed on 31‑7‑1998 whereafter by letter, dated 31‑7‑1998 the petitioner was called upon to make the payment of Rs.30,000 each failing which the amount will be recovered under section 202 of the Customs Act.

Against the above facts the parawise comments have been filed by the respondents where generalized comments and observations have been made which include the allegations that by giving direct delivery the petitioner helped the imports to remove the containers outside the port. In fact if the de‑stuffing has taken place in the KPT premises then the containers may not have been impounded.

Both the sides have also field their brief written statements. In support of his contentions the petitioner has relied upon PLD 1974 SC 5, PLD 1988 Lah. 177, PLD 1989 Kar. 391, PLD 1992 SC 291. The first three case‑laws deal with release of the Vessel/Trucks in which smuggled goods were found. The last judgment deals exhaustively with the concept of "Shippers Load and Count" and the carriers liability.

The respondents have again relied on sections 157, 181 and section 2(1). According to them the containers were rightly ordered to be confiscated and redemption fine was payable in case if the petitioners wanted the containers released.

We have gone through the entire facts and the case‑laws and at the out set it would be appropriate to state that the counsel for the petitioner has categorically stated at the bar that the Order‑in‑Original clearly stipulated, that the containers are confiscated under section 157 and option was given to the lawful redemption fine. Under the circumstances his client did not wish to get the containers released and therefore, the question of payment of redemption fine did not arise.

We are in conformity with what the petitioners Advocate has stated and would according dispose off the petitioner that since the petitioner has stated that he does not wish to clear the containers, therefore the respondents would be free to do what they like with the containers in their custody and they shall not claim the redemption fine from the petitioner. The letter, dated 31‑7‑1990 is therefore set aside as redemption fine can only be claimed if the containers were claimed. Since they are not claimed therefore, there is no question of recovery fine from the petitioner by the respondent. The petition is allowed.

H.B.T./B‑82/KOrder accordingly.