MISAL KHAN VS SECRETARY, REVENUE DIVISION, ISLAMABAD, 2008 PTD-FEDERAL-TAX-OMBUDSMAN-PAKISTAN 1083 (2003)

Customs Act (IV of 1969)---

---Ss. 6, 171 & 179---S.R.O. No.1017(I)/74, dated 26-7-1994---Goods seized by Frontier Corps---Order of Adjudicating Authority directing release of such goods---Validity---Officers of Frontier Corps being delegatee of powers under Customs Act, 1969 could not act in contravention thereof---Such order of Adjudicating Authority would be binding on Officers of Frontier Corps---Principles.

Vide S.R.O. 1017(I)/74, dated 26-7-1994 issued in exercise of powers conferred by section 6 of Customs Act, 1969, the C.B.R. has entrusted specified functions of the Officers of Customs to the Officers of the Frontier Corps. The Frontier Corps thus, function within the parameters of the Customs Act and. its officers cannot act in contravention of the said Act. Thus, the order-in-original passed by Deputy Collector (Adjudication) is absolutely binding on the- Officers of the Frontier Corps.

Under the scheme of Customs Act, various functions have been assigned to different authorities. Power of adjudication is conferred on specified authorities only to examine, whether property is liable for confiscation or not. Thus, orders passed by Adjudicating Authorities concerning disposal of goods and conveyance arc binding on the Seizing Officer or Customs Officer notified under section 6 of the Customs Act.

Sultan Muhammad v. Commandant Pishin Scouts, Chaman PLD 1991 Quetta 36 rel.

Mirza Muhammad Wasim, Adviser (Dealing Officer). Khan Zeb, AR for the Complainant.

Yusuf Haider Orakzai, Deputy Collector (Adjudication) for Respondent.

DECISION/FINDINGS

JUSTICE (RETD.) SALEEM AKHTAR (FEDERAL TAX OMBUDSMAN).---This is a complaint relating to the failure of the seizing agency to hand over the seized goods to the complainant despite the orders of the adjudicating authority. The main points in the complaint are as follows:-

(i) The complainant's goods comprising of 21151 empty cartridges and 2294 Kgs of hardened silver were seized by the Kurram Militia (Frontier Corps) on 8-4-2002.

(ii) Since no notice under section 171 of the Customs Act had been issued by the seizing agency the Deputy Collector (Customs) vide his order-in-original dated 15-5-2002 permitted the release of the seized goods on payment of leviable duty and taxes plus 25% redemption fine.

(iii) The complainant deposited the duty and taxes amounting to Rs.40,622 in the National Bank of Pakistan on 29-5-2002.

(iv) Thereafter the, seizing agency viz. Commandant, Kurram Militia, Peshawar released the hardened silver but refused to deliver the empty cartridges despite the clear orders of the Deputy Collector (Adjudication), Peshawar.

(v) The Assistant Collector (Customs) H.Q. Peshawar in this connection addressed several letters to the Frontier Corps H.Q. but without avail.

(vi) In a similar situation the Honourable Baluchistan High Court has in the case of Sultan Muhammad v. Commandant Pishin Scouts, Chaman PLD 1991 Quetta 36 held that it is incumbent on the seizing agency to follow the orders of the adjudicating authority.

(vii) The last letter was addressed to the Frontier Corps H.Q. by the Assistant Collector (Customs), Peshawar on 12-11-2002 but no action has been taken by the seizing agency in this regard.

It has been prayed that the seizing agency (Frontier Corps) be directed to release the seized goods belonging to the complainant.

2. The reply of the Revenue Division consists of the comments of the Collector of Customs (Adjudication), Peshawar which confirm the correctness of the contents of the complaint and during the hearing there was no dispute regarding the contents of the order-in- original directing the release of the goods on payment of duty and taxes plus redemption fine. It is seen that vide S.R.O. 1017(I)/74 dated 26-7-1994 issued in exercise of powers conferred by section 6 of the Customs Act C.B.R. has entrusted specified functions of the officers of Customs to the officers of the Frontier Corps. The Frontier Corps thus functions within the parameters of the Customs Act and its officers cannot act in contravention of the said Act. Thus the order-in-original dated 15-5-2002 passed by the Deputy Collector Customs (Adjudication) is absolutely binding on the officers of the Frontier Corps. The principle involved is reiterated in the Baluchistan High Court judgment reported as PLD 1991 Quetta 36 referred to by the Advocate for the complainant. Para. 7 of the said judgment reads as under:-

"7. Under the scheme of Customs Act, various functions have been assigned to different authorities. Power of adjudication is conferred on specified authorities, only to examine whether B property is liable for confiscation or not. Thus orders passed by said adjudicating authorities concerning disposal of goods and conveyance are binding on the seizing officer or Custom Officer notified under section 6 of the Customs Act. "

3. The law on the subject is thus quite clear but the main portion of the H. Q. Frontier Corps, Peshawar letter dated 10-9-2002 addressed to the Collector Customs reads as under:-

"Subject: Non-compliance of Court Orders

Superintendent Customs (Auction), Customs House, Peshawar letter No.432/FC/FM-9 dated 3 September, 2002 (photocopy attached) refers.

It has been mentioned on pages three and four of the judgment Order No.238/2000 dated 7 May, 2002 that hardened silver should be released, which has already been released to its rightful owner Mr. Misal Khan son of Ghulam Sher. As far as the cartridges are concerned, the same cannot be released.

2. Please advise."

In reply the Assistant Collector (Customs), Peshawar in his letter dated 12-11-2003 reiterated that the adjudication orders were crystal clear and that the cartridges being part of the goods property were required to be released (after disfiguring). Urgent action in the matter was requested but again there has statedly been no action by the Frontier Corps H.Q. which is a clear disregard of law.

4. In the light of the above, it is recommended that:

(i) The matter be taken up by the Revenue Division at the appropriate level to ensure that the order of the Deputy Collector (Adjudication) is fully complied with by all concerned.

(ii) Compliance report be furnished within 45 days.

S.A.K./197/F.T.O.Order accordingly.