ABDUL HAMEED VS SECRETARY, REVENUE DIVISION, ISLAMABAD, 2006 PTD-FEDERAL-TAX-OMBUDSMAN-PAKISTAN 1675 (2004)

Customs Act (IV of 1969)---

----S. 32---Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), Ss. 2(3), 9 & 11---Refund claim---Auction of scrap by department on basis of weight and payment of its cost, duty and taxes---Short delivery of scrap to bidder---Non-payment of amount recovered from bidder in excess---Validity---Department had not taken action on complaint, but had ignored orders of the senior officers---Refund claim partly sanctioned had not been paid to bidder---Such was a clear case of maladministration---Department could decide actual amount refundable to bidder by ascertaining quantity of scrap from copies of Bill of Entry, record of Bond Section, CPF Warehouse and the gate---Federal Tax Ombudsman recommended to C.B.R. to direct Collector to refund amount already sanctioned, ascertain correct quantity of scrap delivered to bidder, decide remaining amount refundable and sanction same within specified time.

Complainant in Person.

Mohammad Aleem Khan for Respondent.

Sajjad Haider, Assistant Collector of Customs (Appraisement).

FINDINGS/DECISION

JUSTICE (RETD.) SALEEM AKHTAR, FEDERAL TAX OMBUDSMAN.---The complaint has been filed against non-refund of excess value and duty and taxes recovered by the Customs in the auction of two lots of Plastic Scrap. The Complainant has stated that he purchased 47195 Kgs Plastic Scrap in the auction ,#Tom the Customs on the basis of weight and on payment of the amount (of cost, duty and taxes), the goods were handed over to him in ;the presence of the customs staff. According to the delivery order, dated 5-5-1996, the goods comprised 47195 Kgs on which duty and taxes had been paid.

2. The Complainant stated that when the goods were weighed on the weigh bridge in the presence of the Customs staff, the total net weight was found to be 45130 Kgs. He stated that the goods were placed on 75 Wooden Pallets each weighing 25 Kgs, total weight being 1800 Kgs. After deducting the weight of Pallets, the net weight of scrap worked out to 43330 Kgs. He stated that the quantity of scrap delivered to him was thus short by 3865 Kgs and the Customs Authorities recovered an excess amount of Rs.254,124 as the cost of the goods, the duty and taxes. This amount should have been refunded to him but in spite of repeated requests no action has been taken.

3. The Counsel for the Complainant stated that he wrote letters and reminders, dated 5-1-1997, 15-3-1997, 19-7-1997, 2-10-1997, 22-4-2002 and 5-11-2002 to the Collector, the Additional Collector and the Assistant Collector but to no avail. The Additional Collector noted an order on application, dated 15-3-1997 for immediate comments but the Deputy Collector and the Principal Appraiser did not take its notice. The Collector's note on application, dated 17-7-1997 also met the same fate. He had requested the Collector be directed to refund the excess amount received by the Customs and fix responsibility on the officials who did not obey the orders of the superior officers.

4. The Assistant Collector of Customs (Auction) replied to the complaint that the refund of Rs.1,31,850 has been sanctioned on the basis of documents provided by the Complainant showing shortage of 2065 Kgs and the cheque would be issued after clearance of the pre-audit on an undertaking by the Complainant that the (refunded) amount would be returned if the original record was found contrary to the statement made by him. He stated that the weight of 72 Pallets could not be verified from the documents. He stated that the original record was not available and the responsibility for lack of action would be fixed only when the original record was traced.

5. The Advocate for the Complainant reiterated during the hearing of the complaint that the price of the short scrap and the duty and taxes thereon were refundable to him but despite repeated requests no action was taken by the Customs. He submitted that the correct weight of the goods delivered by the customs could be ascertained from the copies of the bills of entry and the records maintained in the Bond Section, CPF Warehouse and at the gate. He contended that the bidder was required to pay only the cost of goods delivered to him and .he was entitled to the refund of the excess amount. If the Customs Authorities had taken .action on the applications, of the bidder, they would have been able to ascertain the correct position and the loss of file would not have occurred at the time. He added that even the amount claimed to have been sanctioned has not yet been paid although the undertaking required by the Customs was submitted in December, 2003.

6. The Deputy Collector replied that the case of the sanctioned amount of Rs.1,30,850 was sent for pre-audit, some objections were raised which would be met and the payment would be made soon. With regard to the ascertainment of net value of goods, the customs have not been able to ascertain the same because seven years' old file was not traceable.. He promised that he would investigate from the sources pointed out by the counsel and examine the possibility of allowing refund.

7. The submissions made by both the sides have been examined. It has been clearly brought out that the Complainant had applied for payment of the value, duty and taxes of the quantity in excess of the actual weight of the scrap auctioned by the Customs, but no action was taken and even the orders of the senior officers were ignored. This is a clear case of maladministration as defined under subsection (3) of section 2 of the Ordinance No.XXXV of 2000. The Assistant Collector has admitted the admissibility of refund amounting to Rs.1,31, 850 but this amount too has not been paid. The Customs Authorities should ascertain the factual position about the quantity of scrap from the copies of the bill of entry, the record of the Bond Section, CPF Warehouse and the gate etc and decide the actual amount refundable to the Complainant.

8. It is recommended that C.B.R. direct that Collector of Customs to

(i) refund the amount of Rs.1,13,850 already sanctioned;

(ii) ascertain the correct quantity of scrap delivered to the Complainant;

(iii) Decide the .remaining amount refundable and sanction the same; and

(iv) take action on (i), (ii) and (iii) within thirty days.

(v) Compliance be reported within forty-five days.

S.A.K./228/FTO????????????????????????????????????????????????????????????????????????????????? Order accordingly.