MAQBOOL PAINT HOUSE through M. Mazhar-ul-Hassan & Company, Karachi VS SECRETARY, REVENUE DIVISION, ISLAMABAD
2007 P T D 2490
2007 P T D 2490
[Federal Tax Ombudsman]
Before Justice (Retd.) Munir A. Shaikh, Federal Tax Ombudsman
Messrs MAQBOOL PAINT HOUSE through M. Mazhar-ul-Hassan & Company, Karachi
Versus
SECRETARY, REVENUE DIVISION, ISLAMABAD
Complaint No. C-346-K of 2007, decided on /01/.
Central Excise Act (I of 1944)---
----S. 33-A---Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), Ss. 2(3) & 22---Release of seized goods---No response for release of impounded goods by the Revenue on the ground that due to transfers and postings and shifting of office premises, the goods/records were misplaced and the Collectorate was trying hard to locate the goods which will be returned as soon as, these. were located----Validity---After passage of long period of seven years and conclusion of all proceedings, the goods/records impounded had still not been returned which spoke volumes of the callousness, carelessness and insensitivity of the functionaries of the Department---When the goods were impounded, it was the solemn duty of the concerned officials to ensure their safe custody and safe return to the .complainant on conclusion of the proceedings---Even if there was shifting of premises from one place to another, this would not absolve the concerned officials from the responsibility of safe keeping of the goods---Degree of responsibility, in such aneventuality .would be higher as it would require extra care to ensure that goods/records impounded belonging to the taxpayers were not lost or misplaced---If officers were transferred, then it was incumbent upon the relieved officers to .properly hand over the charge, including the account of the impounded goods, to their successors---Misplacement and/or loss of impounded goods showed neglect, inattention, inefficiency and inaptitude in the discharging of duties and responsibility by the concerned officials which tantamount to maladministration---Federal Tax Ombudsman recommended that Item which had been traced out should be handed over to the complainant within 3 days of the order; that other item be traced out and handed over to the complainant within 45 days of the receipt of the present order, in case the .other item was not found within the above period, the Department was to pay to the complainant au amount of Rs.40,000 being the estimated cost of the item for its replacement and that-due to loss in business suffered by the complainant on account of maladministration committed by the concerned officials, the Department was to pay a compensation of Rs.20,000 to the complainant within 30 days of the receipt of present order.
Dealing Officer Asad Arif, (Advisor).
Saeed Qureshi and M. Mazhar-ul-Hassan for the Complainant.
S. Sajjad Rizvi, Deputy Collector, Federal Excise and Sales Tax for Respondent.
DECISION/FINDINGS
JUSTICE (RETD.) MUNIR A. SHAIKH (FEDERAL TAX OMBUDSMAN).---The complainant, an Individual engaged in the sale of car paints, is aggrieved by non-release of certain goods impounded by the staff of the Central Excise Department.
2. Brief facts of the case are that the complainant's shop was raided on 11-5-2000 and following articles/goods were impounded:
-- Cash Memo. Book started from serial No: 2001 to 2400 | 1 No. |
-- Cash Memo Book started from serial No. 1601 to 2000 | 1 No. |
-- Fish Reader (Slide Machine) | 1 No. |
-- One empty Tin and one full Tin with canes | 1 No. |
-- Compare. Electronic Scale | 1 No. |
3. It is stated that vide order, dated 22-7-2000, the Assistant Collector ordered for release for the electronic scale but it .was not physically handed over to the complainant and that the various visits made by the complainant bore no fruit as he was informed, that since the matter was sub judice before the Appellate Tribunal, the goods will be released after the Tribunal's order. It is stated that a demand of Rs.75,924 had been raised against the complainant through an order-in- original, dated 31-6-2000 in which the complainant was held to be manufacturing excisable goods without obtaining excise licence and without payment of excise duty. It is stated that since the complainant was engaged only in retail sales of branded I.C.I paint for cars, therefore, this order was challenged in appeal before the Tribunal which accepted the appeal by setting aside the impugned order. Consequently, on 18-7-2002 the complainant again approached the concerned officials for release of his goods/record but he was verbally informed that the Department has filed an appeal before the High. Court of Sindh against the order of the Tribunal and, as such, the goods cannot be released until the matter is finally decided by the High Court of Sindh. It is stated that the High Court of Sindh found the appeal as not maintainable and accordingly dismissed the same vide order, dated 28-9-2006. Thereafter, the complainant again approached the Collector and explaining all the facts vide letter, dated 18-12-2006, requested for released of the impugned goods but there has been no response and hence the .present complaint. The complainant has prayed that the impugned goods be ordered to be released and that because of the wrongful action of the Department in impounding the Fish Reader and Electronic Scale, the complainant has suffered a loss of Rs.50,000 per month which may be ordered to be paid to the complainant in terms of .section 22 of the establishment of the Office of Federal Tax Ombudsman Ordinance, 2000.
4. Replying to the allegations in the complaint, the Deputy Collector in his written. report has stated that although the then Assistant Collector had ordered for release of the Electronic Scale but the complainant had filed an appeal against the order-in-original before the Tribunal, therefore, the matter became sub judice and the release of Electronic scale was stopped and the complainant was formally informed accordingly vide letter, dated 13-1-2001. It is further stated that the seizure case was initiated against the complainant on 11-5-2000 and after this, the Collector of Sales Tax (East and West) have been merged in one Collecorate and due to this merger, the record of these two Collectorates have been shifted from one premises to another and during this period the officials/officers were also posted to different places sometime even outside the jurisdiction of the Collectorate. It is stated that because of the these changes due to transfers and postings and shifting of office premises, the goods/record are presently misplaced and that the Collectorate is trying hard to locate the goods which will be returned as soon as, these are located. During the course of hearing, the Deputy Collector appearing for the Department has informed that a Fish Reader has recently been traced out and that hectic efforts are being made to trace out other misplaced articles/record.
5. Responding to the above, the complainant and his authorized representative have stated that they would not press .for the return of cash memos. and empty tins etc; as these have become old, useless and irrelevant but they insisted for release of Fish Reader and Electronic Scale which are valuable machines and the absence of which is adversely affecting the business of the complainant.
6. Parties have been heard and record produced has been examined.
7. It is rather disconcerting to observe how irresponsibly the affairs of the Department .are being handled and how carelessly the officials business is being conducted. Even after the passage of a long period of seven years and conclusion of all proceedings, the goods/records impugned as only as in the year, 2000 have still not been returned which speaks volumes of the callousness, carelessness and insensitivity of the functionaries of the Department. When the goods were impounded, it was the solemn duty of the concerned officials to ensure their safe custody and safe return to the complainant on conclusion of the proceedings. Even if there was shifting of premises from one place to another, this would not absolve the concerned officials from the responsibility of safe keeping of the goods. In fact, in such an eventuality, the degree of responsibility would be higher as it would require extra care to ensure that goods/records impounded but belonging to the taxpayers are not lost or misplaced. If officers were transferred, then it was incumbent upon the relieved officers to properly hand over the charge, including an account of the impounded goods, to their successors. Misplacement and/or loss of impounded goods show neglect, inattention, inefficiency and ineptitude in the discharge of duties and responsibility by the concerned officials which tantamnounts to maladministration.
8. Because of the negligence of the concerned officials, the business of the complainant suffered but neither in the written report nor during the course of proceedings, the D.R. has given any explanation as to' why compensation be not awarded to the complainant for such loss suffered by him on account of maladministration committed by the concerned officials. When the learned A. R. of the complainant was asked to explain the basis and evidence of the loss statedly suffered @ Rs.50,000 per month, he stated that this figure, in fact, represents the figure of sales which was given on estimate basis and not an exact loss of net income per month suffered by the complainant. In the circumstances, it is recommended that:--
(i) Fish Reader which has been traced out should be handed over to the complainant within 3 days of the receipt of this order.
(ii) Electronic Scale be traced out and handed over to the complainant within 45 days of the receipt of this order.
(iii) In case, the Electronic Scale is not found within the above period, the Department is to pay to the complainant an amount of Rs.40,000 being the estimated cost of Scale for its replacement.
(iv) Due to loss in business suffered by the complainant on account of maladministration committed by the concerned officials as discussed above, the Department is to pay a compensation of Rs.20,000 (Rupees Twenty ,thousand only) to the complainant D within 30 days of the receipt of this order.
(v) Compliance be reported within 7 days after doing the needful in terms of (i) to (vi) above.
C.M.A./115/FTOOrder accordingly.