MUHAMMAD SHUJAH VS SECRETARY, REVENUE DIVISION, ISLAMABAD
2005 P T D 1120
[Federal Tax Ombudsman]
Before Justice (Retd.) Saleem Akhtar, Federal Tax Ombudsman
MUHAMMAD SHUJAH
versus
SECRETARY, REVENUE DIVISION, ISLAMABAD
Complaint No. 380-L of 2004, decided on /01/.
5th July, 2004. Customs Act (IV of 1969)---
----S.33---Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S.2(3)---Refund---Maladministration---Auction purchaser---Complainant had purchased a car from Customs Dryport in open auction and no objection certificate was issued by the department---Police Anti-Car Lifting Cell seized complainant's car as it was booked in a case as a stolen vehicle---Refund of sale price paid by complainant was delayed---Validity---Complainant had offered bid successfully without being aware that the car was stolen---Complainant was not to be blamed for anything---Unreasonable delay to pay the refund due tantamounted to maladministration---Federal Tax Ombudsman recommended that the Revenue Division should direct competent customs authority to refund the sale price.
Fayyaz Athar Siddiquie for the Complainant.
Ms. Munazza Majeed, D.C. Customs (Law) for Respondent.
DECISION/FINDINGS
Facts of the complaint are that the complainant had purchased a car bearing Chassis No.CE-100-900982, Engine No.6112-2E in auction from Customs, Dryport Lahore on 22-10-2003 for an amount of Rs.516,000. He took possession of the said vehicle against a No-Objection Certificate issued by the respondents. On 12-12-2003 the Police Anti-Car Lifting Cell seized complainant s car as it was booked in case F.I.R. No.80 of 2001, dated 26-4-2001 as a stolen vehicle. The complainant approached A.C. (Customs), Dryport Lahore for refund of the sale price i.e. Rs.516,000. A.C. called a report from the Police Anti-Car Lifting Cell to verify the particulars of the vehicle. The Police submitted its report in favour of the complainant. The complainant again requested for payment of refund but to no avail. The A.C. is not releasing the amount of refund on one pretext or other which betrays misuse of authority, mala fide intention and ulterior motives. The complainant is suffering a financial loss. Non-payment of refund is arbitrary, unlawful, unjust and without jurisdiction. Respondents may be directed to pay refund of Rs.516,000 without delay. They may also be directed to pay damages for withholding it without any cogent reason. The Collector of Customs may be directed to proceed against the respondent for abuse of powers for appropriate action under law.
2.In reply, the respondents have acknowledged that the car in question was auctioned on 22-10-2003 and was delivered to Muhammad Shujah (the complainant). On inquiry from the Police the Police Anti-Car Lifting Cell confirmed that the car was lifted as per police report No.13, dated 12-12-2003 as it had been booked as stolen property under F.I.R. No.80 of 2001, dated 24-6-2001 by the Garden Town Police Station Lahore. The chassis of the car was not tampered. The complainant did filed the refund claim but the case was returned to the auction branch for clarification on some legal aspects involved in the case. The A.C. (Auction), in turn, approached the Directorate of Intelligence and Investigation, Customs and Excise, Lahore, which had seized the car in the first instance, to obtain original seizure documents/O-I-O. The respondent did not misuse the authority. The case was referred to the C.B.R. on 29-3-2004, followed by a reminder, dated 12-5-2004, asking the C.B.R. to provide guidance/advice. The delay in sanctioning the refund occurred on account of the foregoing reasons. C.B.R. s decision/advice is awaited. As soon as it is received the case of refund will be finalized. Complainant may be directed to withdraw his complaint as it lacks substance.
3.During the hearing, the complainant reiterated the points advanced in the written complaint emphasizing that after the car was handed over to him he had taken it to a repair workshop and it had almost been repaired when the Police Anti-Car Lifting Cell took it in custody. He had, therefore, incurred huge expense on its repairs. The CollectorateaddressedthelettertotheC.B.R.asforbackason29-3-2004 after more than three months of the filing of his refund application and although more than seven months have passed the subject refund has not been made. He pleaded that the respondents be directed to pay up the subject amount along with compensation for blocking his capital together with expense incurred on repairs.
4.The DR admitted that the car in question was the same as was auctioned to the complainant. The department felt that complainant sclaim for refund of the amount in question was legitimate but certain complications needed to be considered and resolved. For example, the car in question stood confiscated by the department and was forfeited to the Government vide O-I-O No.273 of 2002, dated 9-8-2002. As the rules were silent about how to deal with such case, a reference was made to the C.B.R. vide Collectorate s letter, dated 29-3-2004, followed by a reminder, dated 12-5-2004, seeking its advice. In the reference so made to the C.B.R. the Collectorate had recommended that the principles of natural justice demand that the amount paid by the said bidder may be refunded . C.B.R. s reply was awaited.
5.The arguments of the parties and the record of the case have been considered and examined. The record of the case shows that the subject car was seized by the Directorate of Intelligence and Investigation, Customs and Excise, Lahore on 29-5-2002 for unlawful import into Pakistan without payment of duty and taxes leviable thereon. The contravention case was sent up for adjudication. D.C. (Adjudication) decided it declaring the vehicle as having been brought into the country unlawfully without payment of duty and taxes leviable thereon and confiscated it outright in terms of section 156(1) and (89) of the Customs Act, 1969. Consequent upon the issuance of O-I-O ordering outright confiscation of the car the property vested in the Customs Department. The car was auctioned away and handed over to the complainant against payment of Rs.516,000. Undoubtedly the car seized by the police is same as was auctioned by the respondents and handed over to the complainant. The complainant bid for it successfully without being aware that (i) it was a stolen car and (ii) an F.I.R. had been filed in the Garden Town Police Station. Perhaps, the Customs Department was also not aware of this aspect of the case. The complainant, therefore, purchased the car from the Customs in auction as an innocent buyer. That is why the Collectorate too is sympathetic to his cause as is evident from its reference to the C.B.R. The complainant is not to be blamed for anything. Since he purchased the car against specific payment made to the Customs Department he is clearly entitled to its repayment. As for the amount of expenditure incurred on its repair the complainant stated that the did incur lot of expenditure yet he would not press this claim provided the original amount of Rs.516,000 is paid back to him quickly. Considering the facts of the case justice demands that the amount of money which the complainant paid bona fide for purchasing the car in customs auction is refunded to him. It is observed that the complainant had filed his refund application way back in December, 2003. Although a period of more than six months has passed the refund due to the complainant has not been paid causing him hardship. The unreasonable delay which has occurred in paying back to the complainant the sale price to which he was entitled is tantamount to maladministration within the meaning of section 2(3) of the Establishment of the Office of the Federal Tax Ombudsman Ordinance, 2000. 6.It is recommended that the Revenue Division direct the competent Customs authority to:
(i)Refund an amount of Rs.516,000 to the complainant subject to the condition that on payment of the said amount he would have no right, title or interest in the car.
(ii)Compliance be reported within 30 days.
M.I./308/FTOOrder accordingly.