Messrs ASIAN TRADERS through Proprietor VS MUHAMMAD AKBAR KHAN MAGSI
2009 P T D 1147
[Lahore High Court]
Before Khawaja Farooq Saeed, J
Messrs ASIAN TRADERS through Proprietor and another
Versus
MUHAMMAD AKBAR KHAN MAGSI and 3 others
Writ Petition No. 17903 of 2008, heard on 06/05/2009.
Customs Act (IV of 1969)---
---S.32---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Untrue statement, error in connection with matter of customs---Issuance of demand notice---Petitioners imported textile material and sought its clearance---Since the material was apparently not within the earlier classifications mentioned in PCT Heading, it was sent to the laboratory and on the basis of the report, it was classified under PCT Beading 5407.6100 and was made out of charge on payment of leviable duty and tax as assessed by the Customs Authorities---Subsequently, the petitioners received the impugned demand notices alleging therein that goods were classified under PCT Heading 5407.6100 whereas the same should have been classified under PCT Heading 5903.9000 which attracted higher rate of duty---Since the demand notices issued to the petitioners were without any proceedings subsequent to the delivery of goods to the petitioners having been declared out of charge, it was illegal on the face of it---Authorities could proceed on the basis of provisions of S.32 of the Customs Act, 1969 after fulfilling the parameters thereof and complying with the legal requirements---Demand notice issued to the petitioners was set aside.
Mian Abdul Ghaffar for Petitioners.
Izhar ul Haque Sh. for Respondents.
Date of hearing: 6th May, 2009.
JUDGMENT
KHAWAJA FAROOQ SAEED, J.---The brief facts leading to the present writ petition are that the petitioners are proprietorship concerns and are duly registered in Sales Tax/Income Tax Department. The petitioners imported textile material and sought its clearance. Since the material was apparently not covered within the earlier classifications mentioned in PCT Heading, it was sent to the lab and on the basis of the report, it was classified under PCT Heading-5407.6100 and was made out of charge on payment of leviable duty and tax as assessed by the Customs Authorities. Subsequently, the petitioners received the impugned Demand Notices C. No. 2024 to C. No.2027 all, dated 7-11-2008 alleging therein that the goods were classified under PCT Heading 5407.6100, whereas, the same should have been classified under PCT Heading 5903.9000 which attracts higher rate of duty. These demand notices have been sent by M. Akbar Khan Magsi, who is Principal Appraiser without any formal proceedings prior to the same.
2. Learned counsel for the petitioners challenging the same claims that the said demand notices are. without jurisdiction especially for the reasons that no proceeding under any provision of the customs laws have been initiated after the consignment had become out of charge. Further, the demand notice is always in consequence to the proceedings and is practically the culmination point while it has been issued by an authority which does not hold any jurisdiction to issue the same.
3. The learned Legal Advisor of the Department made an attempt to move out of the situation created by customs authorities by claiming that the same should he treated as a notice under section 32(1) of the Customs Act, but, however, did not supplement his argument on commenting that section 32(4) has also been ignored.
4. Since the demand notices are without any proceedings subsequent to the delivery of goods to the petitioners having been declared out of charge it is obviously illegal on the face of it. The respondents could proceed on the basis of provision of section 32 after obviously fulfilling the parameters thereof and complying with the legal requirement.
5. Since not much discussion would be required to hold the said notices to be as unlawful on the face of it, this writ petition is accepted and the same are held to be as without jurisdiction. Consequently, the Demand Notices C.No. 2024 to C.No.2027 all, dated 7-11-2008 are hereby set aside.
6. This obviously means acceptance of this writ petition accordingly.
H.B.T./A-146/LPetition allowed.