IRSHAD AHMED VS FEDERATION OF PAKISTAN through Secretary, Revenue Division (FBR), Islamabad
2009 P T D 1949
[Lahore High Court]
Before Khawaja Farooq Saeed, J
IRSHAD AHMED and another
Versus
FEDERATION OF PAKISTAN through Secretary, Revenue Division (FBR), Islamabad and 6 others
Writ Petition No.13293 of 2008, decided on 24/06/2009.
(a) Appeal---
----Right of appeal is a vested right which is generally provided by all statutes.
(b) Customs Act (IV of 1969)---
----S.193---Right of appeal, exercise of---Pre-condition---Order passed by Collector---Precondition to file an appeal by a person excluding Custom Officers is that decision or order should be under Ss.79, 80 and 179 of Customs Act, 1979 and authority passing the same should not be below the rank of Assistant Collector---Judgment or order under appeal has to be by a person above the rank of Assistant Collector---No bar exists in entertaining appeal against order passed by Collector either---Appeal against order of Collector can be entertained and decided by Collector (Appeals).
(c) Customs Act (IV of 1969)---
----Ss.193 & 195---`Appeal' and 'revision'-Distinction-Appeal has been provided against any order or judgment passed by any authority equal or above the rank of Assistant Collector while revision is only against order of subordinate officer.
(d) Constitution of Pakistan (1973)---
----Art. 199--- Constitutional petition--- Maintainability--- Factual controversy---Scope---Arms of extraordinary jurisdiction under the provision of Art.199 of the Constitution cannot be extended to factual controversies.
(e) Customs Act (IV of 1969)---
----Ss.2 (kk), 2 (rr), 17, 168 & 186---Constitution of Pakistan (1973), Art.199--Constitutional petition---Terms "detain" and "seize"---Distinction---Non-issuance of notice---Customs authorities conducted raid on the premises owned by .petitioners and seized large quantity of imported paper, for which petitioners could not produce any documentary proof---Plea raised by petitioners was that authorities could not detain and seize the goods without issuance of statutory' notice---Validity---Term "detain" meant to prohibit disposal or use of goods pending finalization of any proceedings, while "seizure" started after the end of such proceedings---Seizure, therefore, started after the goods were taken into possession by Customs authorities as per provisions of S.168 of Customs Act, 1969---Requirement of issuance of notice under S.168 of Customs Act, 1969, started from the date of seizure---Detention or seizure of goods of petitioners did not suffer from any illegality or even irregularity---Law was amended in years 2004 and 2005 and detention had become permissible under Ss.17 and 186 of Customs Act, 1969---High Court declined to interfere in proceedings conducted by authorities against petitioners---Petition was dismissed in circumstances.
Haji Noor-ul-Haq v. Collector of Customs and others 1998 MLD 650; Collector of Customs, Lahore and others v. Haji Noor-ul-Haq PTCL 2003 CL 716; Syed Muhammad Razi v. Collector of Customs (Appraisement), Customs House, Karachi and 2 others 2003 PTD 2821; Assistant Collector of Central Excise and Land Customs v. Mst. Siddiqan Afzal and others 2007 SCMR 1149; Messrs Sohrab Global Marketing (Pvt.) Ltd. through Director v. Deputy Collector of Customs, Lahore and 4 others 2005 PTD 67; Messrs Punjab Arms Co, Lahore through Proprietor v. Deputy Collector of Customs (Group-IV) Lahore and 4 others 2005 PTD 86; Messrs Julian Hshang Dinshaw Trust and others v. Income Tax Officer, Circle XVIII South Zone, Karachi and others 1992 SCMR 250; Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072 and Maple Leaf Cement Factory Limited v. Collector of Customs, Customs House, Faisalabad 2000 YLR 1989 ref.
Mian Abdul Ghaffar and Malik M. Arshad for Appellants.
Ehsanullah Cheema for Respondents.
Date of hearing: 21st April, 2009.
JUDGMENT
KHAWAJA FAROOQ SAEED, J.---Through this writ petition the petitioners have sought interference of this Court against the customs authorities being aggrieved of the raid, search and seizure by the respondent under section 162 of the Customs Act, 1969 and the consequent relief.
2. The brief facts of the case are that the petitioners Nos.1 and 2 who are statedly real brothers are engaged in the business of import and local purchase and sale of paper and paper products. It is a joint business. However, both are registered separately under the Sales Tax Act, 1990. The petitioners are maintaining two Godowns at 48-Rajgarh Road, Lahore and 12-Sanda Road opposite Shahnaz Banquet Hall, Sanda, Lahore, jointly along with their wives. The paper and paper products held by them are normally kept at the said two Godowns. The respondent No.6 accompanied by a heavy contingent of the customs employees duly armed with fire-arms raided both the Godowns of the petitioners on 24-6-2008. The raid was on the basis of search warrant issued under section 162 of the Customs Act, 1969, by the Civil Judge/Judicial Magistrate, Lahore. The same was issued at the request of the respondent No.5 who accompanied the search party himself. The search completed and consequent upon respondent No.6 by exercising the powers under section 186 of the Customs Act, 1969, detained the entire goods lying in both the Godowns by detention noticed dated 24-6-2008 and 27-6-2008. Further, the petitioner No.1 was directed not to remove or part with or otherwise deal with the goods without prior permission till completion of the inquiry.
3. On a formal application filed by the petitioners the custody of the goods in question remained with petitioner No.1. However, the same was subject to the instructions that the goods shall neither be removed nor sold out. The petitioners now claim that the entire stock lying in their Godowns is lawfully imported/purchased. They have furnished complete documents but the respondents are adamant and are not releasing the same by illegally holding that the documents are not complete.
4. The case of the respondent is that out of total 2,569,000 k.g. of different kind of the paper 1,640,457 k.g is allegedly non-duty paid. The petitioners, therefore, were called upon to show cause as to why the paper which is non-duty paid should not be confiscated and penalty imposed under clauses (14) and (90) of section 156(1) of the Customs Act, 1969. Further, that why section 33(5) of the Sales Tax Act, 1990, and section 183 of the Income Tax Ordinance, 2001, along with other relevant provisions of Federal Excise Act, 2005, for contravention of sections 16, S2(1) and (3-A) of the Customs Act, 1969, read with sections 3(1) and 3 of the Import and Export (Control) Act, 1950, should not be invoked. The said notice further states that sections 34 and 36 of the Sales Tax Act, 1990, section 148 of the Income Tax Ordinance, 2001, and sections 3(1)(b) and 3(2) of the Federal Excise Act, 2005, are also invokeable.
5. On initiation of respondent No.2 the powers for adjudication of the case have been delegated to respondent No.3 by the Federal Board of Revenue vide letter dated 29-9-2008. The respondent No.3 was requested to provide copy of the letter through which the powers to inquire into the matter were delegated to him which reads as follows:--
"Government of Pakistan
Revenue Division
Federal Board of Revenue
C.No.6261-M(L)/08Islamabad the 29th September, 2008.
ORDER
(Customs; Federal Excise and Sales Tax)
In exercise of the powers conferred by subsections (2) and (4) of section 179 of the Customs Act, 1969 IV of 1969, the Federal Board of Revenue (Board) after considering the amount of revenue and the technicalities involved in the case is pleased to transfer the following cases from the jurisdiction of existing adjudicating authority, competent to adjudicate the same under subsection (1) of the said section, to the Collector of Customs, MCC, Lahore, for adjudication of the same as per request made by the Chief Collector (North Region), Customs House, Lahore vide his letter C. No. 1/CC(N)Region-70/2008/580, dated 23-9-2008.
| S.No. | Case/Seizure Report No. Date | Date | Value of seized goods |
| 1. | 221/2008 | 19-9-2008 | 115.1 million |
| 2. | Case relating to seizure of bus No.P-5411 | 20 and 21-9-2008 | 4.5 million |
(Mumtaz Ahmad)
Member (Legal)
The Chief Collector,
(North Region), Lahore
with reference to his letter referred above.
Copy for information to:
S.A. to Chairman, Federal Board of Revenue, Islamabad.
(Sd.)
(Mumtaz Ahmad)
Member (Legal)
29-9-2008"
6. Now through this writ petition the petitioners have challenged the obtaining of search warrant, conduct of raid, search and consequently seizure of the goods on the basis of following points:
(i) That the very grant of warrant, conduct of raid and search by the respondent is illegal for want of jurisdiction as is provided under section 162;
(ii) That the goods having been acquired lawfully cannot be investigated after expiry of limitation prescribed under subsection (2) of section 168 of the Customs Act, 1969;
(iii) That entrustment of the inquiry by delegation powers through an officer of the rank of a Collector who had not only remained associated with the search but is also of the authority before whom an appeal lies against the adjudicating proceedings.
7. This way, the case had become that of a double jeopardy. On one hand, inquiry is assigned to a person who has conducted raid and has got an obvious prejudice while on the other hand since he is a senior officer in rank the appeal of the petitioners against his order shall also have the threat of an obvious prejudice.
8. The first argument of the petitioners' counsel is in respect of the search challenging it to be as without jurisdiction. The search has been conducted by Mr. Farrukh Bukhari, Deputy Superintendent Customs, who was neither lawfully competent to be authorized for the purpose being a non-Gazetted officer nor the subsequent search by the said incompetent officer was legal. He brought the attention of this Court to section 162 which in its second line provides for a power to issue search warrant to a gazetted officer. Search warrant having been issued in the name of Deputy Superintendent, of Customs, therefore, is legally not competent.
9. The second argument is that show-cause notice dated 30-9-2008 in respect of the goods seized on 24-6-2008 and 27-6-2008, is barred by limitation in terms of subsection (2) of section 168.
10. The other objection in respect of the raid is that the goods were statedly detained after the said raid. Since the said detention is within the provision, of section 186 of the Customs Act, the connotation used is incorrect. The law through the said provision provides for a seizure under section 168 and there is no concept of the detention under the said relevant provisions. Detention of the goods is made under the provision of section 186, after a fine or penalty has been imposed or a fine or penalty is under consideration. This was, therefore, not a case of detention and the letter issued in respect thereto under section 186 is also illegal.
11. The arguments are followed with further claim that it being a case of seizure the legal correlative which is to follow is that the notices were to be issued within two months under the provision of section 168 subsection (2).
12. The petitioners having not been issued the said notice within the prescribed time of the seized goods, therefore, have the right of its release subsequent to limitation provided therein.
13. The respondents case on the other hand is that the information had come to the knowledge of the Chief Collector Customs, North Region that the petitioner had stored a huge quantity of foreign origin non-duty paid paper and various other allied items. A team, therefore, was constituted to take action under section 162 of the Customs Act, 1969. Search warrants were obtained on 24-6-2008 for godown located at 48-Rajgarh Road, Lahore and for godown located at 12-Sanda Road, Lahore. This team was headed by Deputy Collector Customs (ASO). The recovery, therefore, was made after conducting raid. A huge quantity of the goods of foreign origin including non-duty paid paper coated and un coated (self adhesive sticker paper, self-adhesive PVC sheets), PVC/ plastic rigid film etc. The petitioner failed to produce the document for its lawful import. However, on the request of the petitioner the same were detained and left at the premises under section 186.of the Customs Act, 1969. After physical examination/weighment of the goods the items weighing 2569.000 Metric Ton was ultimately seized.
14. The claim of the petitioner was that he is not an importer by himself and the entire goods have been purchased by him from the local market, however, he could produce only builties of a part of the same and still the invoices produced does not match his total quantity.
15. The summary of the documents produced as per the statement of the respondents vis-a-vis import is as follows:--
"SUMMARY"
Total quantity of assorted types of = 2.569.000 Kgs.
paper and printing ink examined and weighed
Quantity or printing ink= 10.110 Kgs.
Net quantity of paper available in the = 2,558,890 Kgs.
Godowns
The quantity of paper lawfully = 918.423 Kgs.
imported and duty paid
Net quantity of non-duty paid paper of = 1,640,467
Kgs. various types
The relevant valuation date available in "One Customs" and the valuation rulings has been applied to ascertain the assessable value of assorted types of paper."
16. It being evident that Haji Irshad Ahmad and Iftikhar Ahmad owners of. Godowns located at 48-Rajgarh Road, Lahore and at 12-Sanda Road, Opposite Shahnaz Banquette Hall, Sanda, Lahore, have failed to substantiate the legal import, lawful possession and proof of payment of duties and taxes leviable on the foreign origin goods, lying in their Godowns weighing 1640.467 Metric Ton of value Rs.11,511,133 involving duties and taxes of Rs.5,29,47,982 CD Rs.2,35,21,344, ST Rs.2,21,95,345 IT Rs.32,18,325 FED Rs.11,51,121, Regulatory Duty Rs.87,429 and Additional Sales Tax Rs.27,74,418. Therefore, on 19-9-2008 afore-said goods of foreign origin being liable to confiscation were seized under section 168 (1) of the Customs Act, 1969, for contravention of the provisions of sections 16, 32(1) and (3A) of the Customs Act, 1969, read with section 3(1) of the Imports and Exports (Control) Act, 1950, punishable under clauses (14) and (90) of section 156(1) of the Customs Act, 1969, read with section 3(3) of the Imports and Exports (Control) Act, 1950. The case was also referred to the adjudication officer and show-cause notice C.No.1/AIB/HQ/256/2008/ 3055 dated 30-9-2008 was issued to the present petitioners.
17. The other arguments from the respondents' side are as follows:-
(i) Search warrants were issued by the concerned Judicial Magistrates. In terms of section 98 of the Cr.P.C. a Judicial Magistrate can allow search to be made by a police officer not below the rank of a Constable. In the instant case, Judicial Magistrate allowed Deputy Superintendent Customs to cause search of both the premises. Therefore, the proceedings of search are lawful.
(ii) The Collectorate exercised its powers under sections 26A and 26B of the Customs Act, 1969, for the purpose of audit on the basis of specific information. By virtue of the statutory provisions of section 26B ibid, the territorial jurisdiction suo motu stands extended.
(iii) Since section 186 of the Customs Act, 1969, has been amended by the Finance Act, 2004, therefore, the definitions of term Detention stands distinguished from the term Seizure and statutory provisions of section 186 ibid with respect of detention shall prevail over the definitions referred to under section 2(kk) ibid.
(iv) The petitioners produced relevant documents in piecemeal on 7-8-2008, 19-8-2008, 23-8-2008 and finally on 27-8-2008 which are still incomplete.
(v) The provisions of subsection (2) of section 179 ibid have been exercised by the Board lawfully because the words, "and may also assign or transfer any case to any Collector of Customs, irrespective of the territorial jurisdiction" the comma followed by the word and is to be read as semicolon for the purpose of differentiation from the original provisions. Therefore, issuance of gazette Notification is not required under the law.
18. In the light of above discussion the first grievance of the petitioners is that the raid, search and seizure are illegal being in violation of section 162 of the Customs Act, 1969, read with section 103 of the Criminal Procedure Code. The illegality in the opinion of the petitioners is that it is by a non-gazetted officer while only a Gazetted Officer is authorized to take action under section 162 of the Customs Act, 1969.
19. The claim of the petitioners is not supported by the language of law. Section 162 speaks of issuance of a warrant to search for goods and documents or things which are either liable to confiscation, on an application by a Gazetted Officer. The language of law is very clear. The application before the Judicial Magistrate for such a warrant has to be filed by a Gazetted Officer and to the said extent there cannot be two opinions.
20. In the present case, the application before the Judicial Magistrate has been sent by Dr. Syed Faisal Bukhari, Deputy Collector, Customs. On the said request of a Gazetted Officer of Customs, the warrants of arrest have been issued, hence the requirements of law has rightly been met with. However, in continuation to the permission on the basis of said application the said Judicial Magistrate has given authority to Mr. Farhat Bukhari, Deputy Collector of Customs, to enter into the godowns with such assistance as shall be required and to use if necessary force for the above purpose. In this regard he was required to further follow the instructions provided under section 103 of the Code of Criminal Procedure, 1898. The application was filed on 27-6-2008 while order of the Judicial Magistrate Ist Class is also of the same date.
21. It is a matter of record that subsequent to the issuance of said search warrants, Deputy Superintendent, Customs House, Lahore, detained the said goods with the directions to not remove or part with or otherwise deal with the above goods without prior permission and till completion of the examination/inquiry/investigation. 'Subsequently the said Deputy Superintendent Customs through its order dated 12-7-2008 confirmed the completion of examination and gave the custody of the goods after preparation of inventory report to. Haji Irshad Ahmad son of Shamshad Ahmad owner of the goods who was directed to keep the custody till the time post-clearance audit is completed. Later notice under section 26 was issued through which the said Haji Irshad Ahmad was directed to produce the documents of the import as the goods were of foreign origin. It is in the circumstances that the goods were subsequently seized and the proceedings under the law were initiated.
22. The claim of the petitioner that a non-Gazetted Officer had no power, is of no help. The requirement of law is filing of application but it does not indicate as to who can search. While even otherwise, the Deputy Collector Customs who filed the application remained associated with the search which is evident from the proceedings on which it has categorically been mentioned as follows:--
"In my presence Dr. S. Faisal Bukhari, Deputy Collector, Model Customs Collectorate, Lahore, dated 27-6-2008. This observation obviously proves that everything for search to completion of report is done in his presence and the objection that Deputy Superintendent Customs had no authority becomes factually negated. It hardly need any further mentioning that in the search warrant the name of said superintendent is also obtaining and he has been allowed to make the search."
23. In any case, the presence of Deputy Collector Customs being also proved from the record, the argument becomes more of determination of facts, hence, even otherwise not entertainable in writ jurisdiction.
24. The second argument was that right from the first day it is a case of seizure and not detention. Here again the argument does not have any force. As is already referred in the earlier part of this order that until the date of issuance of a notice under section 26 on 10-7-2008 and receiving of reply etc, the goods were not seized. There was a process going on which included entry by the government functionaries in the said godown, inspection of the goods, non-production of document, subsequent notice dated above, its reply and un-satisfaction of the authorities. During entire period the goods were not seized and the process for prior to the seizure remained in operation, thus, one cannot agree with the argument. This obviously decides the supplementary argument that the case being that of seizure the limitation to issue notice expired on .30-9-2008.
25. The next argument of the petitioner is that the show-cause notice even otherwise, is illegal. It is argued that the authority who issued the said show-cause notice on 30-9-2009 was appointed by the Federal Board of Revenue vide its order dated 2-9-2009. It was referred to a forum which does not have any existence as per the provisions of section 179 of the Customs Act. Further the F.B.R. had the power only to transfer the pending cases only. The authority to whom the case has been referred for further proceedings is Mr. Lutaf Ullah Malik, Collector of Customs which though senior officer in rank does not figure any where in the authorities provided under section 179 of the Customs Act.
26. Section 179 of the Customs Act deals with the power to adjudicate. As per its subsection (1) in cases involving confiscation of goods or imposition of penalty the cases are to be decided by:-.
| (i) Additional Collector | without limit |
| (ii) Deputy Collector | not exceeding five hundred thousand rupees |
| (iii) Assistant Collector | not exceeding two hundred and fifty thousand rupees. |
Thus, in the opinion of the petitioner's-counsel the Collector does not figure and assignment of the case to him is, therefore, un lawful.
27. Had the language ended here, the arguments could be accepted. The provisions of section 179(2) have provided further power to the Board. Under the said provision, the Federal Board of Revenue can assign or transfer any case to any Collector of Customs irrespective of territorial jurisdiction. For ready reference the relevant portion is reproduced:--
"Notwithstanding the provisions, of subsection (1) the Board may, by Notification in the official Gazette, fix or vary the jurisdiction and powers of any officer of Customs or a class of officers, and may also assign or transfer any case to any Collector of Customs, irrespective of the territorial jurisdiction."
28. The above provision is very clear in its application. It starts with the connotation "notwithstanding" which makes it a non obstante clause. It is in supersession to all the powers and authorities mention in subsection (1) of section 179. Further it clearly mentions that the assigning or transfer of any case to any Collector of Customs totally ignoring the territorial jurisdiction of the said office can be assigned to him. There is, therefore, absolutely nothing un-lawful in assigning the case to him. Furthermore, there is nothing provided in law to invite the argument that the powers of the Board is only to transfer the pending cases.
29. Another argument which is basically is continuation of the claim that the authority being itself a senior in rank no appeal or revision is not likely to be entertained .by the Appellate Authority or the revisional authority being of the same rank.
30. This Court again tend to disagree with the learned counsel. Right of appeal is a vested right which is generally provided by all the statutes. In the law under discussion section 193 provides appellate jurisdiction. Any person not being an office of the Customs Department aggrieved by decision or order passed under sections 79, 80 and 179 by an officer not below the rank of Assistant Collector may prefer appeal before the Collector (Appeals).
31. The language of the, law is very clear and leaves no doubt with regard to its application. The pre-condition to file an appeal by a person excluding Customs Officers is that the decision or order should be under the section mentioned therein and the authority passing the same should not be below the rank of Assistant Collector. Obviously the judgment or order has to be by a person of above the rank of Assistant Collector.
32. There is, therefore, no bar in entertaining the appeal against the order passed by a Collector either. Legally speaking there is no bar and there is no apparent doubt that against the order of Collector, appeal cannot be entertained and decided by the Collector (Appeals). In any case it has been reported that the said authority is no more attached with the proceedings and it shall be premature to determine as to whether the appraisement shall be by a Collector or a person having a lower rank.
33. Similar is the position with regard to the provision dealing with the revision application. The provision of section 195 has provided this power to Board or. the Collector of Customs. There is distinction between the two of them. The Board can obviously call for record of any proceedings and the Collector being obviously a lower rank there should not be any cavil in its exercising jurisdiction. The disjunctive or `after the board' has given power to Collector of Customs, but, however, within his jurisdiction.
34. Here, however, it has been made clear that the record which the Board or Collector is entitled to examine for the purpose of determining the legality or proprietary has to be by a subordinate authority.
35. The distinction between two sections i.e. section 193 as well as section 195 dealing with appeal and revision, therefore, is quite visible and apparent. The appeal has been provided against any order or judgment passed by any authority equal or above the rank of Assistant Collector while the revision is only against the order of the subordinate officer.
36. The other argument of the learned counsel that the respondent No.3 said Collector had remained associated with the process of raid, detention, seizure and confiscation etc. hence, his role as an Adjudicating Officer has prejudiced the proceedings by his earlier involvement. In fiscal laws this has always remained a part of the system. The officers of the various Revenue Collecting Agencies remain associated as a part of the regular procedure. This, however, even again, is an apprehension and does not invite any argument with regard to some illegality or jurisdictional error.
37. As already mentioned, it has been informed by the learned Legal Advisor during the course of proceedings that the said authority has already been changed and the new appointment has been made in his place to deal with the matters of the petitioner, hence, the objection to the said extent stands practically redressed.
38. The other argument with regard to initiation under section 32 etc as well as valuation, availability of document of certain imports and non-availability in respect of the plans are totally questions of fact. Obviously the arms of the extraordinary jurisdiction under the provision of Article 199 cannot be extended to the such controversies.
39. Coming to the various judgments referred by the two sides. The petitioner counsel has referred Haji Noor-ul-Haq v. Collector of Customs and others 1998 MLD 650, Collector of Customs, Lahore and others v. Haji Noor-ul-Haq PTCL 2003 CL 716. In the first judgment it has been held that the term "detention" is alien for the Customs Act. The second case `however' has defined detention and seizure separately.
40. It has been observed that section 2(kk) of the Customs Act, 1979, defines `detain' in relation to goods. While .the term `seize' has separately been defined in section 2(rr). It holds the seizure to be as taken over of the custody physically or otherwise of the goods in respect of which some offence has been committed and it is so behind.
41. So there is a basic difference between the two. The detention means to prohibit the disposal or use of goods pending the finalization of any proceedings while the seizure starts after the end of the said proceedings. The seizure, therefore, obviously starts after the goods are taken into possession by the respondents as per the provision of section 168. The requirement of issuance of a notice under section 168, therefore, starts from the date of the seizure.
42. In the above two judgments the action of detention factually appeared to be as seizure to the Honourable Court, but, in the present case the detention of the property was well within the definition given in the Ordinance, the same, therefore, are distinguishable.
43. Similarly the facts of the case reported as Syed Muhammad Razi v. Collector of Customs (Appraisement), Customs House, Karachi and 2 others 2003 PTD 2821, the Honourable Sindh High Court in the above ease found that the detention therein is a notional seizure. Since a constructive possession of the goods was taken over by the respondent department. In the present case, the owner was only asked to not sell or transfer the goods unless the inspection is complete.
44. The requirement of issuance of the show-cause notice within the two months of the seizure of goods in this case, therefore, does not apply. In Assistant Collector of Central Excise and Land Customs v. Mst. Siddiqan Afzal and others 2007 SCMR 1149 it was not disputed that whether its detention or seizure and the notice was issued 15 years after the seizure of goods. The judgment, therefore, was announced in favour of the petitioners.
45. The other judgments referred in terms of Messrs Sohran Global Marketing (Pvt.) Ltd. through Director v. Deputy Collector of Customs, Lahore and 4 others 2005 PTD 67 as well as Messrs Punjab Arms Co, Lahore through Proprietor v. Deputy Collector of Customs (Group-IV) Lahore and 4 others 2005 PTD 86 there cannot be any cavil about the findings therein. Central Board of Revenue or otherwise authorized officer could fix the minimum value of goods specify in the first and second schedule through a Notification or valuation advice later. Such Notification or valuation advice later etc,. however, cannot have any legal effect what-so-even. However, since issue of entrustment of inquiry through an officer of the rank of Collector is neither a valuation advice nor a Notification for valuation, the judgments are not direct on the issue.
46. As regards judgment reported as Messrs Julian Hshang Dinshaw Trust and others v. Income Tax Officer, Circile XVIII South Zone, Karachi others 1992 SCMR 250, Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072 and Maple Leaf Cement Factory Limited v. Collector of Customs, Customs House, Faisalabad 2000 YLR 1989 are concerned, this Court does not have any doubt in its mind that writ jurisdiction can definitely be invoked where there is a misconception of law or abuse of power in any form. This Court also does not have any doubt in the mind that writ jurisdiction can be exercised even on the basis of a show-cause notice issued, if the same is based upon some mala fide or is without jurisdiction etc. or suffers from such others patent illegality.
47. The judgments referred by the petitioner and the respondents' counsel both, therefore, are ignored to avoid unnecessary references.
48. In the present case, since this situation does not apply at all, this Court is not convinced that the detention or seizure in this case suffer from any illegality or even irregularity.' In fact learned counsel while referring 1998 MLD 650 (supra) has ignored that the law was amended in 2005 and 2004 respectively and the detention is now permissible under sections 17 and 186 in view of the said amendment. The said two sections are as follows:--
Section 17.
"Detention seizure and confiscation of goods imported in violation of section 15 or section 16.--Where any goods are imported into, or attempted to be exported out of Pakistan in violation of the provisions of section 15 or of a Notification under section 16, such .goods shall, without prejudice to any other penalty to which the offender may be liable under this Act or the rules made thereunder or any other law, be liable to detention, for seizure or confiscation subject to approval of an officer not below the rank of an Assistant Collector of Customs, and seizure for confiscation through adjudication, if required."
Section 186.
Detention of goods pending payment of fine or penalty,---(1) When any fine or penalty has been imposed, or while imposition of any fine or penalty is under consideration [or pending any inquiry or investigation], in respect of any' goods, such goods shall not be removed by the owner until such fine or penalty has been paid [or such inquiry and investigation has been completed] (Emphasis Added).
(2) When any fine or penalty has been imposed in respect of any goods, the appropriate officer may detain any other goods belonging to the same owner pending payment of such fine or penalty.
49. As already mentioned section 17 was redrafted and inserted in 2005 while the amendment highlighted by this Court above in section 186 was brought through the Finance Act, 2004. As a result thereof now, even otherwise, the revenue authorities are fully equipped with the power of detention and seizure. The judgments referred on the issue that a detention in fact is a seizure, therefore, being prior to the amendment referred now, would not apply even otherwise.
50. The upshot of the above discussion, therefore, is obvious. There being no reason for interference the exercise of jurisdiction is hereby declined.
M.H./I-80/LPetition dismissed.