(a) Administration of justice‑‑‑

‑‑‑‑Every person is responsible for his own deeds/misdeeds, acts and omissions and nobody incurs any liability on account of any wrong committed by any other person.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.45‑‑‑Contents of import manifest and amendment thereof‑‑‑Scope‑‑ Allegation of mis-declaration on the part of importer by Collector of Customs‑‑‑Nothing was available on record to the effect that the said importers were also a party to the alleged misdeclaration in other imports‑‑‑Refusal of amendment to the manifest on the, ground of alleged misdeclaration was not tenable.

(c) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.138‑‑‑Frustrated cargo‑‑‑Where any goods were brought into a custom station by reason of inadvertence, misdeclaration, or untraceability of the consignee, the Collector of Customs may, on application by any person‑in‑charge of the conveyance which brought such goods and subject to rules, allow export of such goods without payment of any‑ duty‑‑‑If none of the conditions for treating the consignment as frustrated cargo was satisfied any action in that behalf by the Department was uncalled for.

(d) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.45(2)‑‑‑Contents of import manifest and amendment thereof‑‑ Scope‑‑‑Obvious error‑‑‑Concept‑‑‑Line of demarcation drawn in major and minor penalties by the Customs Department was imaginary and such "figment of imagination" was not warranted in law‑‑‑Principles.

A perusal of section 45(2), Customs Act, 1969 shows that it empowers the appropriate officer to allow the correction of any obvious error in the import manifest or to rectify any omission which in the opinion of such officer results from accident or inadvertence. The present case is not a case of any omission but is a case of correction sought in the IGM. The law has provided for correction of any obvious error in the import manifest. An obvious error is an error which is plain and open and is plainly visible and evident. Now, if the IGM sought to be amended is read with other import documents, Clarification Certificate of the supplier and NOC of the party named as consignee in the IGM cannot be termed anything else but an obvious error with the result that the amendment sought falls squarely within the purview of section 45(2) of the Customs Act. The line of demarcation drawn by the Collector of Customs in major and minor amendment is imaginary and such figment of imagination is not warranted in law. While implementing a law the clear and plain language of the law is to be seen and nothing is to be added or substracted. The golden principle of the interpretation of statute is that in the absence of any ambiguity the plain language of law and the words used in the enactment are to be considered and no additions, insertions or alternations are warranted in the language of law. Collector of Customs had travelled beyond the mandate of law in observing that the request of change of the consignee's name amounted to a major amendment which did not fall within the purview of section 45(2) of the Customs Act

(e) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.45(1)‑‑‑Import manifest‑‑‑Nature, object and scope‑‑‑Change of ownership‑‑ Ownership of goods was' not dependent on the entry on import manifest but on the other import documents‑‑‑If all the import documents were in favour of a person while the name of consignee was shown to be different in the IGM, it would not be a case of change of ownership but would be a case of error/mistake, albeit subject to the surrounding circumstances in each case, which were to be examined objectively and not on extraneous considerations.

A perusal of section 45(1), Customs Act, 1969‑shows that the import manifest is not a document of title but it merely contains the particulars of the goods imported and other particulars as prescribed by the Board from time to time which include the name of consignee. Thus, it is clear that, so far, the question of ownership of the goods is concerned it is not dependent on the entry on import manifest but on other import documents. The purpose of submission of the import manifest by the person in-charge of the conveyance is to ascertain the nature and particulars of the goods brought by the vessel in a particular customs station or customs airport as the case may be and to examine the same with reference to the entries in the Bill of Entry and other import, documents. Thus, if, all the import documents are in favour of a person while the name of consignee is shown to be different in the IGM, it would not be a case of change of ownership but would a case of error/mistake, albeit subject to the surrounding circumstances in each case, which are to be examined objectively and not on extraneous considerations.

(f) Customs Act (IV of 1969)‑‑‑

‑‑‑S.45(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Import-manifest and amendment thereof‑‑‑Amendment sought was to the effect that the name of the consignee be substituted and thereafter the assessment proceedings be completed in respect of the consignment in accordance with law‑‑‑Collector of Customs had misdirected himself in refusing the amendment sought and had thereby failed to exercise jurisdiction vested in him and had resorted to the wrong exercise of, jurisdiction not warranted in law‑‑‑Validity‑‑‑High Court set aside the impugned order and Collector of Customs was directed to allow the amendment sought and ordered that consignments be released on payment of duty and taxes assessed and issue the Delay and Detention Certificate and free slip accordingly.

Khawaja Shamsul Islam for Appellants.

Shakeel Ahmed for Respondents.

Dates of hearing: 18th and 19th December, 2003.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.‑‑‑The common questions of facts and law are involved in both these petitions therefore, they are being disposed of by this consolidated judgment.

The relevant facts as contained in the impugned order‑in- original; dated 14‑5‑2003 in Constitutional Petition No.D‑766 of 2003 are that a request was made for amendment in IGM on the ground that the importer was Messrs Avia International the petitioner and the Bill of Lading; invoice and all other document' were in favour of Messrs, Avia International. A. Clarification Certificate of the supplier was also submitted to the effect that the original consignee was the petitioner. However, name of Messrs Classic. Gift Centre was shown in the IGM as consignee which was, the result of obvious error as a result of inadvertence. The N.O.C. of Classic Gift Centre was also produced to the effect that they have no concern with the consignment. Similar facts are involved in Constitutional Petition No.D‑767 of 2003 with the difference that the importer/consignee is Pervaiz Khan.

The Assistant Collector of Customs, Appraisement (Import section), the respondent No. 1, rejected the request for amendment sought in both the petitions for the reason that Messrs Classic Gift Centre is involved in misdeclaration in another case of import as per clarification of A.I.B. Branch of the Appraisement Collectorate and is facing prosecution proceedings. It was further observed that in addition to the above fact the request for amendment was made by the shipping company on the request of shipper after a gap of substantial period after arrival of the consignment. In the impugned orders, in both the petitions, the respondent No. 1 observed that it is a case of major amendment which does not fall within the purview of section 45(2) of the Customs Act, which contains that the appropriate officer shall permit the correction of any obvious error in the import manifest or to rectify any omission which in the opinion of such officer resulted from accident or inadvertence. It was further opined that it was not a case of simple amendment but was a case of change of ownership. In the order‑in -original in Constitutional Petition No.D‑766 of 2003, the respondent No. 1, while rejecting the request for amendment observed that the change of ownership is dealt with in para. 11(2) of import Policy Order 2002‑2003 for which no application has been submitted respondent No. 1, also held that it appeared to be a consignment of frustrated cargo as it has been disowned by the original consignee Messrs Classic Gift Centre.

Mr. Khawaja Shamsul Islam, learned counsel for the petitioners, in both the petitions, has vehemently argued that impugned orders are mala fide on the face of it and amount to non‑exercise of jurisdiction vested in respondent No. 1, under the provisions of section 45(2) of the Customs Act, 1969 and further amount to erroneous exercise of jurisdiction whereby the request for amendment has been refused. He has proceeded on to argue that the admitted facts are that except I.G.M., all other import documents are in favour of the respective petitioners, coupled with the Clarification Certificate by the supplier and N.O.C. issued by Messrs Classic Gift Centre. He has contended that in the wake of admitted position that the Bill of Lading, invoices and all other documents are in favour of the respective petitioners there is no question of change of ownership and it is a simple case of rectification of mistake on the part of shipping company in the I.G.M. Mr. Shamsul Islam, has maintained that the respondent No. 1 by making an observation that, the request for change in the name of consignee, is a major amendment and therefore, does not fall within the purview of amendment envisaged in section 45(2) of the Customs Act, has misread the provisions of law and has tried to create an imaginary distinction in major amendment and the minor amendment. He has contended that no such expressions are used in section 45(2) of the Customs Act and the introduction of the concept of major amendment and minor amendment amounts to insert something in the statute which has not been enacted by the Legislature. He has vehemently argued that the main reason assigned for refusal of the request is that Messrs Classic Gift Centre is involved in some misdeclaration in another case of imports, which ground is not sustainable in law, because nobody can be punished/condemned for any act/omission of any other person. According to learned counsel it is‑a glaring example of the misuse of authority and colourful exercise of jurisdiction which is liable to be rectified by this Court in exercise of its Constitutional jurisdiction, because no appeal/revision lies against the impugned orders before any forum.

Mr. Shakeel Ahmed, learned counsel for the, respondents Nos. 1 and 2 assisted by Messrs Jawaid Umer Agha, Additional Collector of Customs and Asif Abbas Khan, Deputy Collector of Customs and Mr. Khalid Ishtiaque; Federal counsel have supported the impugned orders. They had reiterated that Messrs Classic Gift Centre is involved in misdeclaration in another import, therefore, respondent No.1 was justified in refusing to entertain the request for amendment in the I.G.M. However, they were not able to deny that except I.G.M. all other import documents are in the name of the respective petitioners and the customs officials have not brought any material on record to show that all or any of the import documents are doubtful in any manner or suffer from any misdeclaration of interpolation.

We have carefully considered the contentions raised by the learned Advocates for the parties and the material placed on record. It is admitted fact that, except the name of the consignee in respective I.G.M.S. all other import documents are in favour of the petitioners, therefore, we need not to dilate on this aspect of the case. The first point which we would like to examine is whether the refusal of the amendment sought is justified for the reason that Messrs Classic Gift Centre are involved in some misdeclaration in respect of any other imports and are facing prosecution. The findings on this point should not detain us for even a moment, because of the salutary principle of law that every body is responsible for his own deeds/misdeeds, acts and omissions and nobody incurs any liability on account of any wrong committed by any other person. The respondent No. 1 has not written even a single word to the effect that the petitioners are also a party to the alleged, misdeclaration on the part of Messrs Classic Gift Centre in other imports. It is, therefore, held that this reason is totally untenable.

The second point for consideration is, whether the consignment under the circumstances can be held to be frustrated cargo as opined by the respondent No. 1, in the impugned order. It is provided in section 138 of the Customs Act, 1969, that where any goods are brought into a customs‑station by reason of inadvertence, misdirection or untraceability of the consignee, the Collector of Customs may, on application by any person‑in‑charge of the conveyance which brought such goods or of the consignor of such goods and subject to rules, allow export of such goods without payment of any duty. In the present case, none of the conditions for treating the consignment as frustrated cargo is satisfied and consequently the observation in this behalf is absolutely uncalled for.

The third point for consideration is whether the law has drawn any distinction in major or minor amendment. For the sake of convenience, the provisions contained in section 45(2) of the Customs Act are reproduced below:‑‑

Section 45(2)

"(2) The appropriate officer shall permit the person‑in‑charge of a conveyance or his duly authorized agent to correct any obvious error in the import manifest or to supply any omission which in the opinion of such officer results from accident or inadvertence, by furnishing an amended or supplementary import manifest or by making an amendment electronically and shall levy thereon such fees as the Board from time to time directs."

A perusal of the above provision shows that it empowers the appropriate officer to allow the correction of any obvious error in the import manifest or to rectify any omission which in the opinion of such officer results from accident or inadvertence. It is not a case of any omission but is a case of correction sought in the I.G.M. The law has provided for correction of any obvious error in the import manifest. An obvious error is an error which is plain and open and is plainly visible and evident. Now, if the I.G.M. sought to be amended is read with other import documents, Clarification Certificate of the supplier and N.O.C. of Messrs Classic Gift Centre the name of Messrs Classic Gift‑Centre as consignee in the IGM can not be termed anything else but an obvious error with the result‑that the amendment sought falls squarely within the purview of section 45(2) of the Customs Act. The line of demarcation drawn by the respondent No.1, in major and minor amendment is imaginary arid such figment of imagination is not warranted in law. While implementing a law the clear and plain language of the law is to be seen and nothing is to be added or substracted. The golden principle of the interpretation of statute is that in the absence of any ambiguity the lain language of law and the words used in the enactment are to be considered and no additions, insertions or alternations are warranted in the language of law. We are of the considered opinion that, the respondent No.1 had travelled beyond the mandate of law in observing that the request of change of the consignee's name amounts to a major amendment which did not fall within the purview of section 45(2) of the Customs Act.

The last point for consideration is, whether it is a case of change of ownership as observed by the respondent No. 1 in the impugned order. Section 45(1) of the Customs Act, deals with the contents of import manifest which is produced below:‑‑

Section 45(1)

(1) Every manifest delivered under section 43 or section 44 shall be signed by the person‑in‑charge of the conveyance or his duly authorized agent and shall specify all goods imported in such conveyance showing separately all goods, if any intended to be landed, transshipped, transited or taken on to another customs‑station or to a destination outside Pakistan and stores intended for consumption at the customs‑station or on the outward voyage or journey, and shall be made out in such form and contain such further particulars as the Board may from time to time directs:

Provided that the Collector of Customs, through a special order, on such terms and conditions as he may deem fit to impose, may allow acceptance of digital signatures instead of manual ones, on electronically transmitted import manifest."

A perusal of the above provisions shows that the import manifest is not a document of title but it merely contains the particulars of the goods imported and other particulars as prescribed by the Board from time to time which include the name of consignee. Thus, it is clear that, so far the question of ownership of the goods is concerned it is not dependent on the entry on import manifest but on other import documents. The purpose of submission of the import manifest by the person in‑charge of the conveyance is to ascertain the nature and particulars of the goods brought by the vessel in a particular customs station or customs airport as the case may be and to examine the same with reference to the entries in the Bill of Entry and other import, documents. Thus, if, all the import documents are in favour of a person while, the name of consignee is shown to be different in the I.G.M., it would not be a case of change of ownership but would a case of error/mistake, albeit subject to the surrounding circumstances in each case, which are to be examined objectively and not on extraneous considerations.

For the foregoing reasons, we are of the considered opinion that the respondent No. 1 has misdirected in refusing the amendment sought in both the petitions and has thereby tailed to exercise jurisdiction vested in him and has resorted to the wrong exercise of jurisdiction not warranted in law. The impugned orders are therefore, set aside. The respondent No.1, is directed to allow the amendment sought. In both the import manifests in the two petitions the name of the consignee be substituted as requested and thereafter the assessment proceedings be completed in respect of the consignment in accordance with the law. On payment of duty and taxes assessed, the two consignments be released forthwith. The respondents are further directed to issue the Delay and Detention Certificate and free slip. The parties are left to bear their own costs.

Both the petitions are allowed as above.

M.B.A./A‑6/K Petitions allowed.