Dr. Syed ZULFIQAR ALI RAZA VS SECRETARY, REVENUE DIVISION, ISLAMABAD, 2006 PTD-FEDERAL-TAX-OMBUDSMAN-PAKISTAN 1559 (2004)

Personal Baggage and Gift Schemes (Import of Vehicles) Rules, 2000---

----Cl. 3(4) of Appendix-G---Import Trade and Procedure Order, 2003-2004---Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S.2(3)---Import of used car on the basis of e-mail information to the complainant by the Central Board of Revenue that "Car, new or more than two years old, is importable under Transfer of Residence Scheme provided that the used car was registered in your name in the country of residence---For further details on Transfer of Residence Facilities please see Baggage Rules on our website under the Head Customs"---Customs authorities did not accept the Central Board of Revenue's letter nor the letter of Embassy of Pakistan, for that matter on the ground that the vehicle imported should had been registered abroad against the complainant's name for a period of one year prior to departure from the country of residence and that if the period of registration abroad was less than one year the condonation of short fall in the requisite period of registration would be required from the Ministry of Commerce---Ministry of Commerce regretted its inability to condone the short fall in the registration period of the vehicle imported under transfer of residence rules---Complainant's personal effects were released while the vehicle was detained without any reason-Validity--Central Board of Revenue advised the complainant specifically that "car, new or more than two years old, is importable under the Transfer of residence scheme provided that the used car was registered in complainant's name in the country of residence"---Complainant was not advised that the car he intended to import had to be registered in his name for a period of one year in the country of residence before his departure for Pakistan---No doubt, the Central Board of Revenue advised him that "for further details on transfer of residence facilities please see Baggage Rules on our website under the head Customs" but a perusal of the text of sub-chapter 6 (Concessions for Import of Baggage on Transfer of Residence) posted on Central Board of Revenue's website indicates that the chapter in question did not provide any information on conditions precedent to the import of a vehicle--Central Board of Revenue, which administers the import policy, should have given complete information to the complainant if it wanted him to adhere to the conditions governing importation of vehicles on transfer of residence---Central Board of Revenue, did not provide correct information to the complainant to enable him to adhere to the prescribed conditions and he imported the vehicle as per advice rendered to him on the e-mail---It was difficult to blame the complainant for importing a car which was not registered abroad for a period of one year before his departure for Pakistan---As per sub-R(4) of R.3 of the Personal Baggage and Gift Schemes (Import of Vehicles) Rules, 2000 no doubt the vehicle (in case of transfer of residence) was required to be registered in the name of the complainant at least one year prior to his departure for Pakistan---Supply of misleading information to the complainant and the subsequent detention of and delay in releasing his vehicle constitute arbitrary, unjust and unreasonable acts amounting to `maladministration'---In view of hardship to which the complainant had been subjected for no fault of his, it was only fair that the Central Board of Revenue find a solution to resolve the problem being faced by him so as to mitigate his hardship---Federal Tax Ombudsman recommended that Central Board of Revenue examine and consider complainant's petition for release of his vehicle sympathetically in coordination with the Ministry of Commerce, if the Central Board of Revenue so wishes so as to mitigate the hardship being faced by him.

Dr. Syed Zulfiqar Ali Raza for the Complainant.

Rizwan Salabat, D.C. Customs Dry Port for Respondent.

DECISION/FINDINGS

JUSTICE (RETD.) MUNIR A. SHAIKH, FEDERAL TAX OMBUDSMAN).---Facts of the complaint are that the complainant, an employee of a Japanese company, lived in Japan for 12 long years. Before returning to Pakistan he had disclosed to the C.B.R. by e-mail his intention to import a used vehicle purchased by him abroad in November, 2003, requesting the C.B.R. to apprise him about the conditions for availing Transfer of Residence facility in respect of import of a used car. In reply, the C.B.R. e-mailed the following information to ,the complainant:

"Car, new or more than two years old, is importable under transfer of residence scheme provided that the used car was registered in your name in the country of residence. For further details on Transfer of Residence Facilities please see Baggage Rules on our website under the Head Customs."

Before his departure from Japan the complainant had owned two vehicles: (i) a Toyota Car (Model 1978), which, after purchase by him, was registered in his name in 1988 and (ii) a Van (model 1993) purchased in April, 2003 which could not be immediately registered in his name as it needed a separate parking lot_ As per the Japan Transportation Law the vehicle could be registered if only one produced a certificate from the police department that a parking lot was available for the vehicle. On receipt of C.B.R.'s reply the complainant applied to the office of Head Land Transportation Department, Okinawa, Japan on November 28, 2003 for permission to discard his Toyota car. The aforesaid car was discarded on December 1,. 2003 and a parking lot became available for the van purchased in November, 2003, which was got registered against complainant's name. Having completed all formalities the complainant shipped his personal effects, including the vehicle, to Pakistan which arrived in Pakistan on 8-12-2003. Although the requisite documents were submitted to the Customs Dry Port, Lahore the authorities did not accept C.B.R.'s letter nor the letter of Embassy of Pakistan, Tokyo for that matter on the ground that the vehicle imported by the complainant should have been registered abroad against the complainant's name for period of one year prior to departure from the country of residence and that if the period of registration abroad was less than one year the condonation of short fall in the requisite period of registration would be required from the Ministry of Commerce. The Ministry of Commerce to whom the complainant had applied for condonation regretted its inability to condone the short fall in the registration period of the vehicle imported under transfer of residence rules vide its letter, dated 17-2-2004. While complainant's personal effects were released by the Customs Department the vehicle was detained without any reason. The complainant had to incur demurrage and various other charges, including shipment charges from Japan to Pakistan, cost of transportation of the vehicle from Karachi to Lahore together with Railways/warehouse charges. As the complainant had imported the vehicle in accordance with information supplied by the C.B.R. he was not to blame in the matter, especially when the information supplied by the C.B.R. did not make any mention of the condition that the vehicle should have been registered abroad in his name for a period of one year in the country in which he was residing abroad. Yet his vehicle was not being released on payment of duty and taxes leviable thereon. As a result, the expenditure incurred on the vehicle by the complainant had become wasteful. The respondents had deprived the. complainant of his car and the Government of its revenues. The complainant had been remitting hard earned foreign exchange to Pakistan and was engaged in useful research work for combating pollution in Pakistan. The vehicle, presently parked in an open space at Customs Warehouse, was rusting. Had the C.B.R. not supplied him incomplete information he would not have imported this vehicle into Pakistan on TR and could have brought instead his old vehicle which stood registered in his name for a considerably long time. Being a law-abiding citizen he tried to fulfil all legal requirements for importation of the vehicle in question but he was frustrated by department's refusal to release the car. It is, therefore, pleaded that condonation in the period of registration of the vehicle may be allowed and the vehicle be released or otherwise its condition would deteriorate. Losses, if any, may be claimed from the C.B.R.

2. In reply, the respondents have submitted that the import of vehicles by passengers was regulated by Personal Baggage, Transfer of Residence and Gift Schemes (Import of Vehicles) Rules, 2000 issued by the Ministry of Commerce. Embassy of Pakistan, Tokyo's certificate had nothing to do with importation of vehicles. The complainant admitted that the vehicle imported by him was registered in his name on 28-11-2003 i.e : only 2 months and 10 days before its .shipment to Pakistan. The vehicle was, therefore, imported in contravention of the provisions of clause 3(4) of the Personal Baggage and Gift schemes (Import of Vehicles) Rules, 2000. The vehicle being imported under TR should have been registered in the name of the complainant at least one year prior to his departure for Pakistan. The registration book produced by the complainant showed that it was not registered in his name for a period of one year before his departure from Japan. The import of such a vehicle could not be allowed under TR. The Customs Department refused to release the car in view of the express provisions of clause 3(4) of Appendix-G (The Personal Baggage and Gift Schemes (Import of Vehicles) Rules, 2000) read with Import Trade and Procedure Order, 2003-2004 which position was subsequently confirmed by the Ministry of Commerce vide its letter, dated 17-2-2004 (on record). The Ministry did not condone the condition as laid down in rule 3(4) of the Personal Baggage and Gift Schemes (Import of Vehicles) Rules, 2000. The Customs could not, therefore, release the vehicle. As for C.B.R:'s e mail message the complainant was also advised "for further details on transfer of residence facilities please see baggage rules on our website under the head Customs". Had he visited C.B.R.'s website, as advised, it would have provided him sufficient information before proceeding in the matter. The C.B.R. had provided enough/sufficient guidance, to the complainant and it was for him to consult the relevant website to apprise himself of detailed procedure for import of a vehicle as part of Personal Baggage. Since the Ministry of Commerce had refused to grant condonation of short fall in the period of registration abroad the departmental action not to release the vehicle was lawful. The department would still be willing to release the vehicle if the Ministry of Commerce granted condonation in the period of registration. The complaint may be dismissed being devoid of merit.

3. During the hearing, the complainant reiterated the arguments as advanced by him in the written complaint emphasizing that he had queried from the C.B.R. through e-mail on 20-11-2003 as to how to avail the TR facility in respect of his vehicle and personal effects and the C.B.R. vide its e-mail reply, dated November 20, 2003 advised that "Car, new or more than two years old, is importable under transfer of residence scheme provided that the used car was registered in your name .in the country of residence". As for respondents' contention that they had asked him to look for further details of Transfer of Residence Facilities from the Baggage Rules on their website under the Head Customs, the complainant did visit the website (the Baggage Rules) but it did not post or provide any information whatsoever regarding import of vehicles under the Transfer of Residence Rules. He referred in this regard to sub-chapter 6 of the data fed by the C.B.R. on its computer website (on record) relating to "Concessions for Import of Baggage on Transfer of Residence" and pointed out that the aforesaid Rules did not provide any information regarding the conditions precedent to the importation of a car, As the specific information he had sought from the C.B.R. was missing from the so-called Baggage Rules to which he was referred he had no option but to proceed according to the e-mail advice given by the C.B.R. in response to his specific query. He had, therefore, imported the car as advised by the C.B.R. The respondents may be directed to consider the complainant's case for condonation of shortfall in the period of registration abroad and allow him relief by releasing his vehicle, especially when he was not responsible for what happened.

4. The DR acknowledged that the complainant had visited C.B.R.'s website and was advised as under:

"Car, new or more than two years old, is importable under transfer of residence scheme provided that the used car was registered in your name in the country of residence. For further details on Transfer of Residence Facilities please see Baggage Rules on our website under the Head Customs."

The DR added that the complainant should have also seen details on transfer of residence facility (Baggage Rules) as advised through the e-mail. He also submitted that if the complainant wanted more details specific to importation of a car he should have made further inquiries to apprise himself about conditions precedent to the import of vehicles which he' did not. The DR also suggested that alternatively, the complainant could have addressed himself to segment titled "Frequently Asked Questions" appearing on C.B.R.'s website, especially to the answer to, question No.9 thereof which would have provided him the information he was looking for. The DR further submitted that the

Import Policy Order was issued by the Ministry of Commerce. The department advised the complainant to approach the Ministry for condonation of the prescribed period of registration of the vehicle abroad but the Ministry rejected his request. The complainant rebutted that C.B.R.'s website component "Frequently Asked Questions" related to the . entire business of the C.B.R. and he was not expected to roam the entire website, especially when the C.B.R. had given him the specific information regarding import of car. The DR suggested that the complainant could again approach the Ministry of Commerce, if he so wished for condonation in the period of registration abroad and if the Ministry condoned the period the department would be willing to release the vehicle on payment of duty and taxes leviable thereon. As it were, the vehicle was detained for non-fulfilment of the conditions laid down by the Ministry vide clause 3(4) of Appendix-G (The Personal Baggage and Gift Schemes (Import of Vehicles) Rules, 2000) read with Import Trade and Procedure Order, 2003-2004. He added that it would not be possible for the Customs to release the vehicle unless the Ministry of Commerce condoned the period of registration abroad.

5. The arguments of the parties to the dispute and the record of the case have been considered and examined. It is observed that following complainant's query regarding conditions and procedure governing the import of vehicles under Transfer of Residence Rules the C.B.R. advised him specifically that "car, new or more than two years old, is importable under the Transfer of residence scheme provided that the used car was registered in complainant's name in the country of residence". The complainant was not advised that the car he intended to import had to be registered in his name for a period of one year in the country of c residence before his departure for Pakistan. No doubt, the C.B.R. advised him that "for fuither details on transfer of residence facilities please see baggage rules on our website under the head Customs" but a perusal of the text of sub-chapter 6 (Concessions for Import of Baggage on Transfer of Residence) posted on C.B.R.'s website indicates that the chapter in question did not provide any information on conditions precedent to the import of a vehicle. The complainant's contention that the Baggage Rules to which he was referred by the C.B.Re. were silent about the importability of car is, therefore, correct. The DR's contention that the complainant should have made more queries to ascertain the conditions precedent for importation of the vehicle, especially about the duration of the period of registration abroad, does not hold good because the C.B.R. in response to a specific query raised by the complainant gave him a specific reply as respects the import of vehicle (without explaining that the vehicle had to be registered abroad for a period of one year before complainant's departure for Pakistan) and he acted accordingly. The DR's suggestion that the complainant should have addressed himself to the "Frequently Asked Questions" on C.B.R.'S website is expecting too much from the complainant, especially when it had provided specific information about import of car to the complainant and the baggage rules for transfer of residence facility were silent about conditions precedent to importation of vehicles. While given him the information by e-mail the C.B.R. could have apprised him that the used vehicle could be imported if only it was registered abroad in his name for a period of one year before his departure for Pakistan or asked him to consult Appendix-G to the Import Policy Order or, alternatively, referred him to the Ministry of Commerce for clarification regarding conditions precedent to importation of a car on transfer of residence. The C.B.R. failed to do that and, instead, gave .the complainant specific advice in the matter and he acted accordingly. The Import Policy Order, 2003-2004 together with its Appendix-G has been issued by the Ministry of Commerce. The Ministry being competent to decide upon complainant's plea for condonation rejected complainant's request for condonation of shortfall in registration time. This forum has no jurisdiction over the Ministry of Commerce and is, therefore, unable to give any findings on the Ministry's order of rejection. However, the C.B.R., which administers the import policy, should have given complete information to the complainant if it wanted him to adhere to the conditions governing importation of vehicles on transfer of residence. Unfortunately, the C.B.R. did not provide correct information to the .complainant to enable him to adhere to the prescribed conditions and he imported the vehicle as per the advice rendered to him on the e-mail. It is, therefore, difficult to blame the complainant for importing a car which was not registered abroad for a period of one year before his departure for Pakistan. It is true that as per sub-rule 4 of rule 3 of the Personal Baggage and Gift Schemes (Import of Vehicles) Rules, 2000 the vehicle (in case of transfer of residence) was required to be registered in the name of the complainant at least one year prior to his departure for Pakistan. However, the supply of misleading information to the complainant and the subsequent detention of and delay in releasing his vehicle constitute arbitrary, unjust and unreasonable acts amounting to `maladministration' within the meaning of section 2(3) of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000. In view of the foregoing position and the hardship to which the complainant has been subjected for no fault of his, it is only fair that the C.B.R. find a solution to resolve the problem being faced by him so as to mitigate his hardship. Accordingly, it is recommended that the C.B.R.:

(i) Examine and consider complainant's petition for release of his vehicle sympathetically--in coordination with the Ministry of Commerce, if the C.B.R. so wishes--so as to mitigate the hardship being faced by him.

(ii) Compliance be reported within 30 days.

C.M.A./411/FTO???????????????????????????????????????????????????????????????????????????????? Order accordingly.