Messrs MUSKZAR KNITWEAR (PVT.) LTD. through Chief Executive VS ASSISTANT COLLECTOR OF CUSTOMS
2006 P T D 1393
[Lahore High Court]
Before Sheikh Azmat Saeed, J
Messrs MUSKZAR KNITWEAR (PVT.) LTD. through Chief Executive
Versus
ASSISTANT COLLECTOR OF CUSTOMS and 4 others
W.P. No.3985 of 2005, decided on 15/12/2005.
Customs Act (IV of 1969)---
----Ss. 32(1), 156(14) & 161---Constitution of Pakistan (1973), Art.199---Constitutional petition---Making untrue statement---Imposition of penalty---Assistant Collector of Customs recorded report in which it was alleged that petitioner had submitted untrue statement with regard to exported consignments and by so doing had committed offence under S.156(14) of Customs Act, 1969 liable to imposition of penalty---Contention of petitioner was that he could not be proceeded under S.32 of Customs Act, 1969 as no loss to the public exchequer had been caused---Contention of petitioner was repelled as actual loss was not necessary to constitute an offence under S.32(1) of Customs Act, 1969 read with S.156(14) thereof---Specific allegation, in the present case, was that false documents had been filed by the petitioner before Customs Authorities---Petitioner, otherwise, should first exhaust his alternative remedy before invoking constitutional jurisdiction of High Court---High Court declined interference in the matter.
Messrs Al-Hamd Edible Oil (Pvt.) Ltd. and others v. Collector of Customs and others 2003 PTD 552; Federation of Pakistan and others v. Messrs Saman Diplomatic Bonded Warehouse 2004 PTD 1189 and Messrs A.R. Hosiery Works, Karachi v. Collector of Customs (Export), Karachi and another 2004 PTD 2977 ref.
Mian Abdul Ghaffar for Petitioner.
S.M. Zeeshan for Respondents Nos. 1 to 4.
ORDER
SHEIKH AZMAT SAEED, J.---This constitutional petition calls into question a report, dated 10-3-2005 recorded under section 161 of the Customs Act, 1969. It is further prayed that the petitioner cannot be proceeded under section 32 of the Customs Act, 1969 as no loss to the public exchequer has been caused.
2. Brief facts leading to the filing of this petition are that respondent No.1 recorded Report No.6 of 2005, dated 10-3-2005 purportedly under section 161 of the Customs Act, 1969 alleging therein that as per the bills of export submitted by the petitioner it exported two consignments of 150 cartons each containing 5000 Denim Jeans valuing US $ 30,000. However, the concerned manifest revealed that each consignment contained 50 cartons of Denim Jeans valuing US $ 3000. Hence, the petitioner has committed the offence, inter alia, under section 156(14) of the Customs Act, 1969. The said report has been challenged through this constitutional petition.
3. Pursuant to the order of this Court the respondents have filed their report and parawise comments.
4. The learned counsel for the parties have been heard and the record appended with this petition. has been perused.
5. It is contended by the learned counsel for the petitioner that section 156(14) can only be invoked if provisions of section 32 of the Customs Act, 1969 are violated. And a harmonious reading of the said provision shows that no offence is committed unless and until there is an actual loss of public revenue. It is contended that in the instant case no loss- has been occasioned to the public exchequer. Furthermore, the allegation of mere filing a false statement or document does not constitute an offence under section 32(1) of the Customs Act, 1969 unless there is corresponding loss of revenue. In support of his contentions the learned counsel has relied upon the judgments reported as Messrs Al-Hamd Edible Oil (Pvt.) Ltd. and others v. Collector of Customs and others (2003. PTD 552), Federation of Pakistan and others v. Messrs Saman Diplomatic Bonded Warehouse (2004 PTD 1189) and Messrs A.R. Hosiery Works, Karachi v. Collector of Customs (Export), Karachi and another (2004 PTD 2977).
6. On the other hand, the learned counsel for the Revenue has controverted the contentions raised on behalf of the petitioner and has contended that the acts and omissions of which the petitioner has been accused constitutes an offence and, therefore, is being rightly proceeded against in accordance with law. It is further contended that this constitutional petition is premature. The petitioner should first move an application before the Special Judge (Customs) before invoking the constitutional jurisdiction of this Court.
7. The truth or otherwise of the allegations is not in issue of this Court. The only aspect of the matter that requires adjudication is whether the allegations levelled against the petitioner constitutes an offence. In pith and substance the contentions of the learned counsel for the petitioner are that the loss of revenue is an essential ingredient to constitute an offence of violating section 32(1) of the Customs Act, 1969. I am afraid this contention of the petitioner cannot be accepted. From a bare reading of the provision itself it is clear and obvious that actual loss of public revenue is not essential ingredient of the offence. Furthermore, as has been held in the case of Messrs A.R. Hosiery Works, Karachi (Supra) relied upon by the learned counsel for the petitioner that:-
"A harmonious reading of the entire section tends to show that it does not cover every untrue declaration having nothing to do with evasion of customs duty or other charges but such statements must indicate an attempt to defraud public revenues."
Thus, it is obvious that actual loss is not necessary to constitute an offence under section 32(1) read with section 156(14) of the Customs Act, 1969. In the instant case there is a specific allegation that false documents have been filed before the Customs Authorities. It is for the Trial Court to determine whether such filling constitutes an attempt to evade public revenue.
8. In this view of the patter, this Court is not persuaded to interfere or intervene at this stage. The petitioner should first exhaust his alternative remedy before invoking the constitutional jurisdiction of this Court. Consequently, this petition is without any merit and is hereby dismissed.
M.H./M-138/LPetition dismissed.