AZHAR IQBAL VS SECRETARY, REVENUE DIVISION, ISLAMABAD
2007 P T D 1384
[Federal Tax Ombudsman]
Before Justice (Retd.) Saleem Akhtar, Federal Tax Ombudsman
AZHAR IQBAL
Versus
SECRETARY, REVENUE DIVISION, ISLAMABAD
Complaint No. C-272-K of 2004, decided on 10/07/2004.
Customs Act (IV of 1969)---
----Ss.139, 142 & 181---Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S.2(3)---Declaration by passenger---Temporary detention---Confiscation---Complainant was working in foreign country, .Gold Bangles brought by the complainant in his baggage were declared by him and wanted to pay customs duty---Customs officials confiscated the bangles---Department, in reply alleged that the complainant had requested for summary adjudication for immediate release---Validity---Adjudication order was passed without issuing show-cause notice and without written request---Appellate authority had not passed order more than two years after hearing---Confiscation order passed by Adjudicating Officer was contrary to law, unjust and oppressive---Pendency of appeal reflected neglect and inefficiency---Case was of clear maladministration--Federal Tax Ombudsman recommended Central Board of Revenue to allow re-export of the Gold Bangles under section 142 of the Customs Act, 1969 at the time of departure from Pakistan.
Azhar Iqbal for the Complainant.
Ghulam Rabbani for Respondent.
Nisarul Haq, Chartered Accountant.
Azizuddin Ahmed Secretary (Legal), C.B.R.
Syed Naeem Akhtar, Deputy Collector of Customs.
FINDINGS/DECISION
The complaint has been filed against the confiscation of Gold Bangles brought by the complainant in his baggage. He has stated that on arrival at the Quaid-I-Azam International Airport on 19-10-2000, he declared 8 Gold Bangles as gift for his wife and wanted to pay the customs duty leviable thereon. Instead of allowing payment of duty, he alleged, the customs officials confiscated the Bangles without issuing a show-cause notice and providing opportunity of hearing.
2. The complainant stated that he filed an appeal before the Appellate Tribunal, which rejected it for lack of jurisdiction. His appeal was heard by Mr. Agha Shahid Majeed Khan, Secretary (Legal), C.B.R., on 15-5-2002 but no order was issued. He sent a letter, dated 9-10-2002 to the Secretary but got no reply. He complained that since 18-12-2000, the date of adjudication order, no further order has been received by him. He submitted that he had exhausted all the legal remedies, more than a year has passed since the last hearing, and requested that the competent Authority be directed to provide him the option under section 181 of the Customs Act and allow release of the Bangles on payment of duty and taxes, and any other compensation for inconvenience and mental agony be awarded.
3. The Deputy Collector of Customs, Legal Division (Preventive), replied to the complaint that the passenger himself had requested for summary adjudication and the appeal was pending in the C.B.R. The Secretary (Legal) C.B.R., informed this office that the hearing of the appeal was conducted by Mr. Muhammad Wall Khan, Member (Legal), on 15-5-2002 but no order was issued.
4. Mr. Nisarul Haq, Chartered Accountant representing the complainant stated during the hearing that it was the passenger's legal right to bring the Gold Bangles as gift for his wife. He had declared the same to the customs and the confiscation order was harsh and totally unjustified. He stated that the entire case of the complainant was explained to the Member (Legal) and he was requested to allow the option to pay fine in lieu of confiscation as provided under section 181 of the Customs Act. The complainant approached C.B.R. several times and wrote letters but received no response.
5. He also cited the judgment of the Appellate Tribunal in Appeal No.47 of 2000 where, in a similar case, the Tribunal had allowed to take back the goods out of Pakistan. He stated that the complainant has been working in Dubai for the last three years and if the Bangles were not allowed release, he may be permitted to take them back to Dubai.
6. The Deputy Collector of Customs stated that from the record of the customs it appeared that the complainant had opted for summary adjudication although no formal written application from him was on record, and, from the contents of the adjudication order, it also appeared that he was heard by the Deputy Collector.
7. It is established from the facts of the case discussed above that the Gold Bangles were duly declared by the complainant which proved his bona fide. According to the established practice of the Customs Department, a facility is provided to the bona fide international passengers to opt for summary adjudication for immediate release of their permissible baggage items against affordable fine in lieu of confiscation in addition to duty and taxes. There is no evidence to support the contention that the complainant applied for summary adjudication as stated in paragraph 4 of the order. The Deputy Collector passed the order fifteen days after the arrival of the passenger and signed it after two months without giving option of redemption fine under section 181 of the Customs Act.
8. Clearly the adjudication order was passed without issuing of show-cause notice, without written request for summary adjudication and without hearing. The Appellate Authority has not passed any order more than two years after the hearing of the appeal. The complainant whole declared the Gold Bangles in his baggage has thus been subjected to prolonged harassment. The confiscation order passed by the Adjudicating Officer is contrary to the established practice without valid reasons, which is perverse, 'unjust and oppressive, and the pendency of the appeal c reflects neglect and inefficiency in the discharge of duty on the part of the competent officer. It is a clear case of maladministration as defined under subsection (3) of section 2 of Ordinance No. XXXV of 2000.
9. It is recommended that with a view to redressing the genuine grievance of an expatriate Pakistani, C.B.R.
(i) allow re-export of the Gold Bangles under section 142 of the Customs Act at the time of his departure from Pakistan;
(ii) an appropriate order be issued by the C.B.R. within fifteen days; and
(iii) compliance be reported to this office within thirty days.
M.I./333/FTO????????????????????????????????????????????????????????????????????????????????????? Order accordingly.