NATIONAL HIGHWAY AUTHORITY through Director Construction VS CENTRAL BOARD OF REVENUE through Chairman, 2007 PTD-KARACHI-HIGH-COURT-SINDH 2293 (2004)

Customs Act (IV of 1969)---

----S.19---Constitution of Pakistan (1973), Art.199--Constitutional petition---Contention of the petitioner was that machinery, equipment and spare parts etc. which were lying at the ports had not been released into the custody of the National Highway Authority due to ongoing dispute with the Customs Authorities in respect of applicability of exceptions from customs duties, and that for the time being these items be ordered to be released subject to payment of duties etc. to the Customs Authorities by the National Highway Authority---Validity---Held, National Highway Authority being entitled to get the machinery released in its favour, it would be deemed proper that the machinery in question be released in favour of National Highway Authority, provided that the regular customs duties etc. were paid which shall in first instance be adjusted from the balance amount lying with the Nazir of the Court and these amounts shall be deposited with the Nazir of High Court which would secure the interest of Customs authorities---High Court further observed that present order was subject to exemptions of customs duties etc. if any, which may be obtained by the National Highway Authority from the Central Board of Revenue regarding the machinery.

Nisar A. Mujahid for Petitioner along with Sabir Hussain, General Manager, M.I. NHA and Farid Khan Asstt. Director Legal NHA.

ORDER

Today the Board was discharged in the morning as we did not have any secretarial assistance and hence the matters could not proceed. However, this matter was kept at 11-00 a. m. and accordingly Mr. Nisar along with the two officers is present.

The Reader has informed us that the representative of Collector of Customs was present in the morning but has now left the Court due to the discharge of the Board. Mr. Nisar has submitted that the machinery, equipment and spare parts etc. which are lying either at Karachi Port or Port Qasim, have not been released into the custody of the NHA due to the ongoing dispute with the Customs Authorities in respect of applicability of exemptions and customs duties etc. According to learned counsel the list at Annexure `F' of the letter dated 24-4-2004 written by the Chairman NHA to the Chairman Board of Revenue in which exemption is sought for certain -items mentioned in the list but till 'today no response has been received by the NHA: hi the circumstances learned counsel has prayed that for the time being the items mentioned in Annexure. `F' to the letter be released subject to payment of duties etc., to the Customs Authorities by the NHA as earlier some items were released by the order of this Court based on the fact that NHA had stepped into the shoes of Messrs Bayindir Construction Inc. It is submitted that the earlier order was subject to the deposit of Rs. 1,101,210 and according to learned counsel the duties on the items cleared under the earlier order comes at Rs.6,912,454 and hence the balance amount should cover duties etc. leviable on the machinery at Annexure `F'. He, therefore, prays that the Customs Authorities be directed to release the consignments.

We have heard learned counsel. In the circumstances of the case as we have already observed that NHA has stepped into the shoes of Messrs Bayindir Corporation and hence would he entitled to get the machinery etc., released in their favour, it is ordered that the machinery listed in Annexure `F' to the letter dated 24-4-2004 written by the Chairman NHA to the Chairman Board of Revenue shall be released in favour of the NHA, provided that the relevant customs duties etc., are paid which shall in the first instance be adjusted from the balance amount lying with the Nazir of the Court. It is also directed that these amounts shall be deposited with the Nazir of this Court. In our opinion this is a proper order as it would secure the interest of the Customs Authorities.

We have passed the above order as the machinery is to be used for the construction of Islamabad Peshawar Motorway. The above order is subject to exemptions of customs duties etc:, if any, which :may be obtained by the NHA from the Central Board of Revenue regarding the machinery. Learned counsel also points out that the original shipping documents are lying with the clearing and forwarding agents of the Messrs Bayindir Corporation i.e. Messrs Security Packers, respondent No.6 and unless an order is passed by this Court they would not deliver the documents to the petitioners. In the circumstances the respondent No.6 is directed to immediately hand over the shipping documents of the consignments which were imported by Messrs Bayindir Construction Inc. to NHA.

M.B.A./N-33/K?????????????????????????????????????????????????????????????????????????????????? Order accordingly.