MAW AND COMPANY through Proprietor VS COLLECTOR OF CUSTOMS, 2011 PTD-LAHORE-HIGH-COURT-LAHORE 561 (2010)

(a) Customs Act (IV of 1969)---

----S. 195---S.R.O. 659(I)/2009, dated 30-6-2007---Constitution of Pakistan, Art.199---Constitutional petition---Petitioner being importer of ceramic tiles and sanitary goods had challenged the validity of report for determination of origin of the goods in the light of order passed by High Court in the year 2010 and sought direction against authorities for the return of amount deposited by the petitioner under protest as balance differential amount and declaration of F.I.R. under Customs Act, 1969 to be ab initio void---Contention raised by petitioner was that under the "Free Trade Agreement" executed with the neighbouring country in the year 2006, petitioner was entitled to be exempted from paying of customs duties/regulatory duties---Authorities objected that FTA certificate on the basis of which the petitioner had claimed benefit in the customs duty had been found bogus on its verification---Imported glazed porcelain tiles were not mentioned in the `Free Trade Agreement' vide S.R.O. 659(I)/2007 dated 30-6-2007 and the customs duty was enhanced from 25% to 35% on import of glazed porcelain tiles and Regulatory Duty at the rate of 15% was also imposed on it by virtue of the Finance Act, 2008---Authorities, according to law as well as after verifying the certificate of FTA passed a final assessment order whereunder the indemnity bond and post dated cheque was released to the petitioner upto the extent of difference payable in lieu of provisional concessionary rate of customs duty under the said S.R.O.---Authorities from the neighbouring country vide letter in the year 2009 informed that stamp and signature on the certificate presented by the petitioner was false-Such certificate did not qualify the criteria as laid down under `Free Trade Agreement'---Authorities in Pakistan, in circumstances, had rightly re-opened the matter while exercising power under S.195 of the Customs Act, 1969 and had committed no illegality---Constitutional petition was dismissed in limine.

(b) Customs Act (IV of 1969)---

----S.195---Constitution of Pakistan, Art.199---Constitutional petition--Maintainability---Petitioner without availing alternate remedies under the Customs Act, 1969 had directly filed constitutional petition---Constitutional petition was not maintainable coupled with file fact that the controversial question of fact regarding the certificate of origin was involved which could only be resolved by the competent authority after collecting the relevant material---Constitutional petition was dismissed in limine.?

Shafqat Mehmood Chohan for Petitioner.

Sarfraz Ahmad Cheema for Customs-Department/respondents.

ORDER

IJAZ AHMAD CHAUDHRY, J.---Through the present constitutional petition, Messrs MAW and Co. petitioner calls in question the validity of the report dated 24-9-2010 issued by respondent No.2 being against the judgment of this Court dated 2-8 2010 passed in Writ Petition No.16364 of 2010 with further prayer that the respondents be directed to return the amount deposited by the petitioner under protest under the aforesaid order of this Court and the proceedings initiated by the respondents regarding registration of F.I.R. No.31 of 2010 dated 12-7 2010 under sections 16, 32, 32-A, 156(1)(9)(4) and 14-A of the Customs Act be also declared ab-initio void.

2. Briefly the facts, relevant for the disposal of this petition, are that the Government of Pakistan and the Government of People Republic of China entered into an agreement dated 24 11-2006 i.e. called "Free Trade Agreement" on the basis whereof the custom duties/regulatory duties were considered to be exempt. The petitioner being an importer of Fine Ceramic Stoneware Polished (Unglazed) Tiles as well as many other kinds of ceramic tiles including sanitary goods, imported a consignment vide GD No 10578 dated 16-4-2009 of tiles on which the duties and taxes were accordingly determined which the petitioner paid in cash and for the balance differential amount, the post dated cheques were submitted and the goods were released under section 81 of the Customs Act, 1969 on provisional basis subject to the verification of the goods by the, PCSIR Laboratories, Lahore regarding nature of the commodity. After receipt of the report in favour of the petitioner from the PCSIR Laboratories, Lahore the clearing agent of the petitioner approached respondents Nos.1 and 2 for the purpose of release of the cheques deposited under section 81 of the Act relating to the differential amount but instead of retuning the cheques showed him the letter, dated 2-10-2009 addressed to the Director HEJ, Research Institute of Chemistry, International Center for Chemical Sciences, University Karachi which was challenged by the petitioner by filing Writ Petition No 24908/2010 in which this Court which was disposed of vide order 8 2 2010. Respondent No.3 according to law as well as after verifying the Certificate of F.T.A. dated 24-3-2009 passed a final assessment order dated 9-3-2010 and also demanded from clearing agent of the petitioner 'verification of the certificate of FTA of the competent authority as desired by respondent No. 1 which was accordingly submitted. Thereafter the petitioner came to know that the respondents are going to register an F.IR. against the said act whereupon the petitioner filed Writ Petition No.15598 of 2010 but during the filing of the petition the respondents registered F.I.R. No.31 of 2010 dated 12-7-2010 and the said writ petition was withdrawn by the petitioner. Thereafter the petitioner filed Writ Petition No.16364 of 2010 challenging the very registration of the aforesaid F.I.R. and the acts committed by the respondents which was disposed of by this Court with direction to respondent No.2 therein to resolve the matter within thirty days with direction to the petitioner to deposit Rs.16,79,232 under protest with respondent No.2 with the direction that if it is found that the goods which were imported by the petitioner are of China original, the said amount shall be returned to the petitioner and till the conclusion of the report by respondent No.2 the operation of the F.I.R. was ordered to be stayed but respondent No.2 without determining the origin of goods illegally, without lawful authority and without complying the orders of this Court issued report dated 24-9-2010. Hence this writ petition.

3. Learned counsel for the petitioner contends that the report issued by respondent No.2 is based on mala fides and against the spirit of judgment of this Court in Writ Petition No.16364 of 2010; that the report has been issued on the directions of respondent No. 1 just to harass the petitioner; that the report has been issued without determining the origin of the goods in the light of the orders of this Court, as such, the entire proceedings conducted by the respondents are illegal, without lawful authority and the amount deposited by the petitioner under protest is liable to be refunded to him; that as per direction of this Court issuance of FTA Certificate was to be verified but the same has neither been verified nor it was negated by the FTA authorities concerned of People Republic of China, as such, the report is illegal and without lawful authority; that initiation of proceedings against the petitioner by the respondents without issuance of show-cause notice as well as without setting aside of the final assessment order is illegal, without lawful authority and against the provisions of the Customs Act and that the registration of the F.I.R. is based upon mala fide intention on the part of the respondents.

4. Learned counsel for the respondents while opposing this petition contends that this writ petition is not maintainable for more than one reason i.e. availability of alternate remedies in the hierarchy of Custom and that all the questions raised in this petition are disputed questions of fact which cannot be looked into in the exercise of constitutional jurisdiction as the same need factual probe requiring recording of the evidence; that the FTA certificate on the basis of which the petitioner has claimed benefit in the custom duty has been found bogus on its verification.

5. I have heard the learned counsel for the parties and also perused the available record. Messrs MAW and Company, Lahore the petitioner imported a consignment of fine ceramic stoneware polished tiles (HS Code 6907.9000) and glazed porcelain files (HS Code 6908.9010) from China against Goods Declaration No.LDRY-HC-10578 dated 16-4-2009 filed through Messrs Zaid International Custom Clearing Agent and submitted Certificate of Origin No. P09440180449112 dated 24-3-2009 for obtaining concession of custody duty under the China-Pakistan Free Trade Agreement vide S.R.O. 659(I)/2007 dated 30-6-2007 but the imported glazed porcelain tiles (HS Code 6908.9010) were not mentioned in the aforesaid S.R.O. and the custom duty was enhanced from 25% to 35% on import of glazed porcelain tiles and Regulatory Duty at the rate of 15% was also imposed on it by virtue of the Finance Act, 2008. After the cropping up of the aforesaid controversy between the parties, the petitioner filed Writ Petition No.506 of 2009 before the Islamabad High Court in which an order dated 10-4-2009 was passed to the effect that in the meanwhile, the consignments imported by the petitioner from Peoples Republic of China shall be assessed on payment of custody duties leviable under treaty and excess amount assessed by the Customs Department and other levies on the declared value and the petitioner was directed to submit post-dated cheques of the excess amount. Thereafter the petitioner filed another Writ Petition No.24908 of 2009 before this Court which was disposed of vide order 8-2-2010. Respondent No.3 according to law as well as after verifying the Certificate of FTA dated 24-3-2009 passed a final assessment order dated 9-3-2010 whereunder the indemnity bond and post dated cheque of Rs.31,28,944 was released to the importer upto the extent of difference payable in lieu of provisional concessionary rate of custom duty under S.R.O. 659(I)/2007 dated 30-6-2007. After the aforesaid final assessment order was passed by the Deputy Head of Mission, Commercial. Section, Embassy of Pakistan, Beijing (China) vide letter No.CS-I(8)/2009-F. B. R. dated 26-3-2010, informed that the stamp and signatures in box 13 of the Certificate of Original No.P09440180449112 dated 24-3-2009 was false. On receipt of the verification report dated 26-3-2009 the importer submitted another Certificate of Original No. ZC 151OB 15/7013 dated 7-6-2010, issued after more than a year of the import. However, the said certificate did not qualify the criteria as laid down in Attachment-A i.e. Operational Certificate Procedure for the Rules of Original of the China-Pakistan Free Trade Area notified vide SR.O. 1286(I)/2005, dated 24-12-2005 which also created doubt and the customs authorities have rightly re-opened the matter while exercising power under section 195 of the Customs Act, 1969 and have thus committed no illegality. Even otherwise the petitioner without availing the alternate remedies available to him under the Customs Act has directly filed this writ petition before this Court, as such, the same is not maintainable coupled with the fact that the controversial question of fact regarding the Certificate of Origin is involved which can only be resolved by the competent authority after collecting the relevant material, as such, even on this score also the present writ petition is not maintainable.

6. For what has been discussed above, I find no merit in this writ petition which is hereby dismissed in limine.

M.U.Y./N-640/L???????????????????????????????????????????????????????????????????????????????? Petition dismissed.