Messrs A.B. TRADERS VS DEPUTY COLLECTOR OF CUSTOMS, LAHORE
2005 P T D 2400
[Lahore High Court]
Before Umar Ata Bandial, J
Messrs A.B. TRADERS and another
Versus
DEPUTY COLLECTOR OF CUSTOMS, LAHORE and another
Writ Petition No.8408 of 2005, heard on /01/.
th
July, 2005. (a) Customs Act (IV of 1969)---
----Ss.83, 168, 171, 179 & 181---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Scope and application of Ss.83, 168, 171, 179 & 181 Customs Act, 1969---Refusal to allow clearance of duty paid imported goods was relatable to a specific prohibition or restriction on their import under the Customs Act, 1969 or any law referred therein, the detention of such goods would not, prima facie, suffer from jurisdictional abuse or excess---Such action was indeed harsh in effect and had to be taken exceptionally and would necessitate prompt service of show-cause notice that discloses the grave violation of the law, including in particular, as in the present case, a prohibition against import of the goods sought to be cleared by the importer---Service of such a notice was not denied by the importer in the present case and record did not show any patent jurisdictional excess that should, notwithstanding the availability or resort to alternate remedies, invited interference in the Constitutional jurisdiction of High Court---Importer/petitioner having already availed a competent remedy provided by law fnd having had raised points regarding importability, discrimination and violation of the due process and safeguard contained in Ss.168, 171, 179 & 181 of the Customs Act, 1969 in case which was pending adjudication, therefore, importer had an adequate remedy before the said forum, which shall consider the objections of the importer on merits and decide them by a speaking order---Constitutional petition was dismissed in circumstances.
Gatron (Industries) Ltd. v. Government of Pakistan and others 1999 SCMR 1072 fol.
Messrs Zeb Traders v. Federation of Pakistan 2004 PTD 369 and Messrs Raza Enterprises (Pvt.) Ltd. v. Deputy Superintendent AFU Customs 2004 PTD 2950 distinguished.
Al Ahram Builders (Pvt. )Ltd. v. Income Tax Appellate Tribunal 1993 SCMR 29 ref.
(b) Trade Marks Ordinance (XIX of 2001)---
----Preamble---Constitution of Pakistan (1973), Art.89---Vires of Trade Marks Ordinance, 2001 on the ground that the said law expired four months after its promulgation---Validity---Held, Law was framed at the time when Art.89 of the Constitution stood suspended---Law making power under Provisional Constitution Order, 1999 read with Provisional Constitution Order (Amendment) Order, 1999 which was free of fetter of expiry was exercised to make the said Ordinance---Objection taken was inapplicable to the Trade Marks Ordinance, 2001 and therefore futile.
Waqar Ahmad for Petitioners.
Izhar ul Haq Sheikh for Respondents.
Date of hearing: 14th July, 2005.
JUDGMENT
This writ petition was admitted to regular hearing to determine whether refusal by the respondent Customs Authorities to allow clearance to the imported goods after the process of their appraisement, assessment and calculation of duties had been completed, is valid or not in the light of rule laid down in the cases of Messrs Zeb Traders v. Federation of Pakistan (2004 PTD 369) and Messrs Raza Enterprises (Pvt.) Ltd. v. Deputy Superintendent AFU Customs (2004 PTD 2950). The foregoing judgments hold that after payment of customs duties on imported goods the detention of the imported goods without service of notice and conduct of proceedings under sections 168, 179 and 181 of the Customs Act, 1969 is illegal.
2. In the petitioner's case the imported goods were duly assessed on G.D-1 (previously called bill of entry), dated 13-1-2005 whereon the assessed duties were paid on 17-1-2005 and the out of charge stamp applied to certify clearance of the consignment but the same was detained at the gate of the customs station at Lahore Airport. The foregoing facts are close in analogy to the facts of' the case of Zeb Traders referred above wherein detention of imported goods, by the Customs Intelligence Authority in similar circumstances was declared illegal. The comments filed by the respondents, however, reveal that the petitioner has filed ail appeal against the impugned action which is pending adjudication. As such having adopted a course of action under the hierarchy of departmental remedies, the petitioner is claimed under the rule laid down in the case of Al Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal (1993 SCMR 29) to be disentitled to indulgence in the Constitutional jurisdiction of this Court. More specifically on the important matter of jurisdiction the respondents support the impugned action under a specific power conferred by section 83 of the Customs Act, 1969 the provision whereof is reproduced below:--
SECTION 83 OF THE CUSTOMS ACT, 1969:
(1)"When the owner of any goods entered for home consumption and assessed under sections 79-A, 80, 80-A or 81 has aid the import duty and other charges, if any, in respect of the same, the appropriate officer, if he is satisfied that the import of the goods is not prohibited or in breach of any restrictions or conditions applying to the import of such goods, may make an order of clearance of the same:
Provided that, at Customs-stations where the Customs Computerized System is operational the system may clear the goods through system generated clearance documents."
3. It is apparent from the foregoing statutory provisions that after payment of import duties and other charges, the appraising staff in the Collector is competent and vested with powers to deny clearance of the imported goods unless they are satisfied that their import is neither prohibited nor is in breach of any restriction or condition applying to their import. Section 83 confers vast powers of a residual nature to ensure lawful import of goods into the country. In the present case the blocking order is stated to have been passed on 15-1-2005 in respect of all imports by the petitioner Firm. The embargo was ordered on the computer network of the respondents two days prior to the payment of the duties by the petitioner. The basis of blocking order was explained A by the respondents to the petitioner vide show-cause notice, dated 31-1-2005 to be the violation of section 15 of the Customs Act, 1969 read with para. 16A (VI) of Import Policy Order, 2004-2005. These provisions concern the illegal import of counterfeit products in violation of trade marks, copyrights and other intellectual property rights. Prima facie, therefore, the action taken by the respondent Authorities fell within contemplation of section 83 of the Customs Act, 1969 and the question is whether the rule laid down in the case of Zeb Traders on what appear to be similar facts, nevertheless vitiates the said impugned action. A close reading of the two judgments referred above shows that they are concerned with facts involving under-assessment of duty. More important by, however, neither judgment has considered the impact and implication of section 83 ibid; these cannot therefore be an authority for the proposition in hand.
4. So long as denial to allow clearance to duty paid imported goods is relatable to a specific prohibition or restriction on their import under b the Customs Act, 1969 or any law referred therein, the detention of such goods would not prima facie suffer from jurisdiction abuse or excess.
Such action is indeed harsh in effect and must be taken exceptionally. It would necessitate prompt service of show cause that discloses the grave violation of the law, including, in particular as in the present case, a prohibition against import of the goods sought to be cleared by the petitioner. It is not denied that such a notice has been duly served on the petitioner. Therefore, for the purposes of present petition there does not appear on record of the case a patent jurisdiction excess that should, notwithstanding the available or resort to alternate remedies, invite interference in the Constitutional jurisdiction of this Court as contemplated by the Hon'ble Supreme Court in its judgment given in the case of Gatron (Industries) Ltd. v. Government of Pakistan and others (1999 SCMR 1072).
5. In passing it may be mentioned that the petition erroneously attacks the vires of the Trade Marks Ordinance, 2001 on the ground that the law expired four months after its promulgation. This law was framed at the time when Article 89 of the Constitution stood suspended. Law C making power under P.C.O.I. of 1999 read with P.C.O. (Amendment) Order 9 of 1999 which is free of the fetter of expiry was exercised to make the said Ordinance. The objection taken is inapplicable to the said Ordinance and therefore futile.
6. Furthermore for the reasons that the petitioner has already availed a competent remedy provided by law and has raised points regarding importability, discrimination and violation of the due process safeguard contained in sections 168, 171, 179 and 181 of the Customs Act, 1969 therefore the petitioner has an adequate remedy before that forum, which shall consider the objections of the petitioner on merits and decide them by a speaking order. For the foregoing reasons this petition is dismissed.
M.B.A./A-549/LPetition dismissed.