KAHOOT INTERNATIONAL VS COLLECTOR OF CUSTOMS, 2009 PTD-KARACHI-HIGH-COURT-SINDH 687 (2007)

Customs Act (IV of 1969)---

.---Ss. 26 & 79---Constitution of Pakistan (1973), Art.199---Constitutional petition---Place of origin of imported goods---Burden to prove---Constitutional petition---Grievance of petitioner/importer was with regard to public notice issued by the Collector Customs in response to the Circular/letter of the C.B.R. dated 17-2-2007---Grievance seemed to be that said Circular/letter aimed to shift the burden of proof as regards the place of origin of the imported goods upon the importer had been made applicable by the department to their cases retrospectively least realizing the fact that said Circular of C.B.R. itself specified that it would take effect on 1-3-2007 on imports of polyester fabrics from UAE---Petitioner had contended that taking undue benefit of said Circular of the C.B.R., department was asking for the certificate of the manufacturer even from those importers whose consignments had arrived at the port before the target date 1-3-2007 and that as a result, adverse presumption as regards the origin of those goods was being drawn against them, simply due to the non-production of certificate of the manufacturer, which was not the condition earlier imposed by the department in terms of S.79(1) of the Customs Act, 1969---Validity---Only relief that could be granted to the petitioners was in respect of the goods imported by them which had arrived at the Port before target date 1-3-2007---Condition imposed through Circular of C.B.R. dated 17-2-2007 would not be made applicable and consequently the Public Notice issued by the Collector of Customs in response to said Circular of C.B.R., would also have no bearing; it would, however, be open to the department to examine the question of place of origin of such goods in the light of the relevant provisions of law already in force.

Government of Pakistan of through Ministry of Finance and 3 others v. Manzoor Brothers 1995 SCMR 516 and Messrs Shamoon Traders, Quetta v. Customs, Excise and Sales Tax Appellate Tribunal, Karachi and others 2006 PTD 2177 ref.

Suhail Muzaffar and Faisal Siddiqui for Petitioners.

Raja Muhammad Iqbal, Aqeel Ahmed Abbasi and Ghulam Haider Shaikh for Respondents.

ORDER

The petitioners in the above titled four constitutional petitions have approached this Court with their grievance regarding the Public Notices No.2-2007 dated 28-2-2007 and No.8-2007 dated 12-3-2007 issued by the Collector of Customs (Model Collectorate, Karachi), in response to the circular/letter of the C.B.R. dated 17th February, 2007.

2. Precisely, their common grievance seems to be that the said Circular issued by the C.B.R. aimed to shift the burden of proof as regards the place of origin of the imported goods/consignments upon the importer has been made applicable by the respondents to their case retrospectively, least realizing the fact that the said circular of the CBR itself specifies that it will take effect from 1-3-2007 on the imports of polyester fabrics from UAE and such imports shall be viewed to be of banned origin, without certificate of the manufacturer establishing the origin.

3. Mr. Faisal Siddiqui learned counsel for the petitioner, in Constitutional Petition No.867 of 2007 contends that taking undue benefit of such circular of the C.B.R., the respondents are asking for the certificate of the manufacturer even from those importers, whose consignments/goods have arrived at the port of Karachi before 1-3-2007 and in the result, adverse presumption, as regards the origin of these goods is being drawn against them, simply due to the non-production of certificate of the manufacturer, which was not the condition earlier imposed by the respondents in terms of section 79(1) of the Customs Act, 1969. In support of his submissions that in the given facts and circumstances the practice of retrospective applicability of such condition cannot be followed by the respondent, the learned counsel has placed reliance upon the case of Government of Pakistan through Ministry of Finance and 3 others' v. Manzoor Brothers (1995 SCMR 516). Further submission of the learned counsel is that the petitioners, as regards their. imported consignments subject matter of these petitions, have no objection, if their consignments are examined in the normal course as per the practice followed earlier by the Customs Authorities for determining the place of its origin in the light of relevant provisions of the Import Policy Order 2006.

4. Mr. Sohail Muzaffar learned counsel for the petitioners in the other three petitions contends that he will be satisfied with the disposal of his petitions in the terms that it should be clarified that in respect of the consignments which have been imported by his clients and have arrived at the port of Karachi before 1-3-2006, no demand of certificate of manufacturer, based on the impugned circular of C.B.R. dated 17-2-2007 will be made from them and the normal practice/procedure for assessment of the goods and for. determining their place of origin will be followed by the customs authorities.

5. Mr. Raja Muhammad Iqbal in his reply arguments has strongly relied upon the provision of section 16(viii) of the Import Policy Order, 2006. He contends that the import of goods from India or goods of Indian origin are not allowed to be imported in Pakistan, except according to the list notified vide appendix "G" and to ensure complete transparency and curb the malpractices followed by the importers in this regard, the necessity for issuance of impugned circular was felt by the C.B.R. and consequently the said circular dated 17-2-2007 was issued, and its compliance was made by the Customs Authorities at Karachi by way of publication of notices dated 28-2-2007 and 12-3-2007. The learned counsel was, however, unable to give any satisfactory reply to the query made by the court that when the circular dated 17-2-2007 has itself fixed the date of its applicability from 1-3-2007, how the importers of goods before such date could be called upon for production of certificate of the manufacturer, in terms thereof.

6. The other counsel Mr. Aqeel Ahmed Abbasi is also unable to controvert this position. However, he contends that any observations made by this Court in relation to such circular issued by the C.B.R. or the impugned notices got published by Collector may not prejudice the proceedings of assessment of these goods before the respondents, in as much as the petitioners may not presume that now the respondents are denuded of their authority to examine and ascertain the place of origin of such goods. Mr. Aqeel Ahmed Abbasi, with reference to the certificate of origin has also made reference to the recent judgment of the Hon'ble Supreme Court in Messrs Shamoon Traders, Quetta v. Customs, Excise & Sales Tax Appellate Tribunal, Karachi and others 2006 PTD 2177 whereby the certificate produced by the importer which was issued by the Chambers of Commerce of Dubai, was not accepted as valid proof of place of origin of the goods, by making reference to the language of rules 7 and 16 of the Rules of Origin, 1973.

7. The apprehension of Mr. Aqeel Ahmed Abbasi learned counsel for the respondents seems to be without force as the only relief which could be granted to the petitioners through this petition is that, in respect of the goods imported by them which have arrived at the Port of Karachi before 1-3-2007 the condition imposed through circular 17-2-2007 will not be made applicable and consequently the public notice dated 28th February, 2007 will also have no bearing. It will, however, be open for the respondents to examine the question of place of origin of such goods in the light of the relevant/provisions of law already in force.

8. Accordingly, these petitions are disposed of with the above observations.

H.B.T./K-4/KOrder accordingly.