Messrs MEHAR BROTHERS through Prop. Zaheer Ahmed VS ADDITIONAL COLLECTOR OF CUSTOMS (APPRISEMENT-II), KARACHI
2005 P T D 917
[Karachi High Court]
Before Zahid Kurban Alavi and Muhammad Mujeebullah Siddiqui, JJ
Messrs MEHAR BROTHERS through Prop. Zaheer Ahmed
versus
ADDITIONAL COLLECTOR OF CUSTOMS (APPRISEMENT-II), KARACHI and 3 others
Constitutional Petition No.D-517 of 2000, heard on /01/.
14th September, 2001. Customs Act (IV of 1969)---
----Ss. 193-B(4) & 196---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Judgment of Appellate Tribunal as to classification of imported goods on basis of report of PCSIR Laboratory---Non-filing of appeal by Department---Refusal of department to accept such classification and release securities furnished by importer before Tribunalforprovisionalreleaseofgoods---Validity---Departmenthavingnotpreferredappealhadnoauthoritytowithholdsuchsecurities of importer---High Court accepted Constitutional petition with direction to Department to release such securities as early as possible.
Mian Abdul Ghaffar for Petitioner.
Raja M. Iqbal for Respondents.
Date of hearing: 21st August, 2001.
JUDGMENT
ZAHID KURBAN ALAVI, J.---Through this petition the petitioner has prayed for the following relief;
(a)that judgment passed by Appellate Tribunal Islamabad attained its finality and is binding on the Customs Department by virtue of subsection (4) of section 194-B of the Act as no appeal under section 196 of the Act was filed by the Department and that respondent No.1 has no authority to violate or refuse implementation of the said judgment;
(b)that respondent No.1 has no authority to re-adjudicate the same matter which already stood adjudicated by the Collector of Appeals, Appellate Tribunal as well as Hon ble High Court and that order, dated 17-7-1999 passed by respondent No.1 in violation of aforesaid judgment is illegal, void, unjust, arbitrary and nullityin the eye of law;
(c)that respondents No.1 & 2 are under legal obligation to discharge the securities furnished by the petitioner at the time of provisional release of goods after pronouncement of the judgment by learned Appellate Tribunal and that respondents Nos.1 & 2 have no authority under the law to violate the said judgment or to act contrary thereto or refuse implementation thereof;
(d)that respondents Nos.1 & 2are not permitted under the law to violate or depart from long term practice unless procedure prescribed vide CGO 21/73, dated 26-5-1973 is followed and aproper public notice is issued and in the absence thereof departure from such practice would be illegal void and of no legal effect;
(e)that pending decision of this petition, operation of impugned order, dated 17-7-1999 may very graciously be suspended, securities furnished by petitioner at the time of provisional release of goods be directed to be discharged and respondent No.1 be restrained from creating unnecessary harassment, obstructions and hindrance in smooth running of business by petitioner.
The facts leading to this petition are that the petitioner had imported burnt and melted aluminium scrap falling under PCT Heading 7602.0000. Pre-shipment inspection was made by Messrs S.G.S. which confirmed the description of the goods and the PCT Heading under which it falls but when the petitioner filed bill of entry for its clearance, the respondents refused to release the same on the allegations that it was ash and residue falling under PCT Heading 2620.0000. It is further the case of the petitioner that a sample of the material imported by them was sent for, for visual inspection. The sample of ash is in powder form while burnt aluminiumis in the form of a melted scrap, was sent for laboratory test and same was conducted by P.C.S.I.R. Laboratories,Lahore which supported the petitioner sclaim. The Customs Authorities of Lahore, Karachi and SambrialDryPorts have been classifying the material in question under H.S. Code 7602.0000. It is further the case of the petitioner that Collector of Customs, Central Excise (Appeal) had differed with the Customs Authorities and ordered to assess the same material under PCT Heading 7602.0000 against which the Department went in appeal before the Customs Central Excise and Sales Tax AppellateTribunal, Islamabad who accepted the appeal of the petitioner vide order, dated 23-1-1996 holding that theoverwhelming evidence i.e. Advice of Controller of Customs, SGS PSI Company Classification, PCSIR Reportand consignments cleared at Lahore and Karachi clearlyshow that the item falls under H.S. 7692.0000. The impugned order was set aside and consignment was ordered to be placed under Heading 7602.0000. During the pendency of the above appeal the department refused to classify the melted aluminium scrap under PCT Heading 7602.0000 hence the petitioner preferred Writ Petition No.7075 of 1976 before Lahore High Court, Lahore. The imported goods were directed to be provisionally released subject to payment of duties and taxes as leviable under PCT Heading 7602.0000 on furnishing indemnity bond and post-dated cheque by the petitioner covering differential amount of duties and taxes with additional undertaking that the petitioner would pay the said differential amountof duties and taxes in case appeal of the Department is accepted by the Appellate Tribunal. Accordingly the goods of the petitioner were released. The appeal filed by the Department was dismissed by Appellate Tribunal as stated above. In view of the order of Tribunal the petition of the petitioner before Lahore High Court was also allowed, and the indemnity bond, post-dated cheque as well as undertaking furnished by the petitioner atthe time of provisional release of goods were discharged by the Dryport Authoritiies, Samberial (Sialkot). It is further asserted by the petitioner that in view of above decisions they wrote letter to respondents for discharge of securities furnished by them at the time of provisional release of goods but respondent No.1 instead of releasing the securities fixed hearing in the matter and issue notice to them. The petitioner gave reply to the aforesaid notice stating therein that the matter regarding classification of burnt and melted aluminium scrap stoodfinalized on dismissal of appeal of the Department and that securities furnished by them were liable to be discharged in implementation of orders of Collector of Appeals, dated 25-1-1996 as confirmed by Appellate Tribunal vide judgment, dated 6-11-1996 and order, dated 11-12-1996 passed by Lahore High Court in aforesaid writ petition. It is averred by the petitioner that instead of discharging the securities the respondents passed the impugned order holding therein that burnt and melted aluminium scrap imported by them was not classifiable under PCT Heading 7602.0000 and that it was correctly classifiable under PCT Heading 2620.4000 and directed the petitioner to pay differential amount failing which action under section 202 of Customs Act and rules made thereunder shall be initiated against them.
We have heard the learned counsel for the petitioner as well respondents at length and perused the entire record. It is contended by the counsel for petitioner that the Department did not file any appeal against the judgment, dated 6-11-1996 passed by Appellate Tribunal as such the said judgment attained its finality and no order adverse thereto can be passed by respondents. He has further contended that Lahore High Court also allowed the Writ Petition of the petitioner as such the respondents have no authority under the law to pass the impugned order, dated 17-7-1999 in violation or uttar disregard of the orders passed by different forums. He has further pointed out that Appellate Tribunal vide judgment, dated 6-11-1996 has also categorically observed that for change of classification certain procedural requirements were to be completed by the Department and in the absence thereof long term practice for classifying the goods in question under PCT Heading 2620 instead of 7602 would be illegal, but respondents have no authority to proceed contrary to the decisions given by differentforums.
Mr. Raja M. Iqbal, counsel for respondents when confronted with the above facts was unable to give satisfactory reply to the submissions made by the counsel for petitioner.
It is an admitted position that Customs Excise and Sales Tax Appellate Tribunal as well as Lahore High Court have given the finding in favour of the petitioner keeping in mind the report of PSCIR Laboratory, the respondents have no authority to withhold the securities furnished by the petitioner at the time of provisional release of the goods. The matter for all practical purposes was settled at different forums and the Department had also not preferred any appeal, it is clearly a case of misuse of powers on the part of the respondents.
We by our short order, dated 21-8-2001 allowed the petition. Foregoing are the detailed reasons for the same. We would direct the respondents to release the securities furnished by the petitioner at the time of provisional release of the goods as early as possible.
S.A.K./M-185/KPetition accepted.