JAMAL SALAM VS DEPUTY COLLECTOR CUSTOMS, 2012 PTD-LAHORE-HIGH-COURT-LAHORE 1471 (2012)

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

----Ss.179, 180 & 168---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Adequate remedy---Petitioner, who held an import authorization permit for ammunition was issued with a show cause notice stating that he had exceeded his quota and used more than one NTN to import the ammunition---On basis of said show cause notice, his import authorization permit was withheld---Case of the petitioner was that the Customs officers had exceeded their jurisdiction and were acting contrary to the law---Validity---Remedy provided under the Customs Act, 1969 was not efficacious as the Customs Officers could not decide whether they had exceeded their jurisdiction or whether the Ministry of Commerce was the competent authority to withhold the original Import Authorization Permit---Constitutional petition was maintainable, in circumstances.

PLD 2008 SC 779 and PLD 2010 SC 969 ref.

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

----Ss.168, 180, 179 & 16---Import Policy Order, 2009 (as amended up to 15th March 2011), S.8---Constitution of Pakistan, Art.199---Constitutional petition---Import Authorization Permit---Petitioner, who held an import authorization permit for ammunition was issued with a show cause notice stating that he had exceeded his quota and used more than one National Tax Number to import the ammunition---Contention of the petitioner was that any dispute in relation to the import status of any item had to be resolved by the Ministry of Commerce as per S.8 of the Import Policy Order, 2009 and no Customs Officer had the authority to withhold the ImportAuthorizationPermit---Validity---Ministry of Commerce as per the Import Policy Order merely prescribed the quota for the import of non-prohibited bore arms and ammunition throughthe Import Authorization Permit---Import per se would be regulated by the Customs Authority under the Customs Act, 1969---Mere permission by the Ministry of Commerce would not divest the Customs Authority from its jurisdiction---Section 16 of the Customs Act, 1969 envisaged the role of the Federal Government which was to prohibit or restrict the bringing into or taking out of Pakistan of any goods---Any prohibition or restrictions set out by the Federal Government would fall within the scope of the Customs Authority under the Customs Act, 1969---Issuance of Import Authorization Permit by the Federal Government did not take away the jurisdiction of the Customs Authorities to investigate, inquire and adjudicate under the Customs Act, 1969 in terms of any import into Pakistan---Customs Authorities were fully authorized to withhold the original Import Authorization Permit pending an inquiry conducted under the Customs Act, 1969 and upon the conclusion of such an inquiry, they could send their recommendations to the Ministry of Commerce---Section 168(3)oftheCustomsAct,1969empoweredtheCustomsAuthoritiestoseizeanydocumentorthingwhichintheir opinion would be useful evidence in any proceedings under the Act---Withholding of the Import Authorization Permit was in accordance with the powers conferred upon the Customs Officers under the law---Constitutional petition was dismissed in circumstances.

PLD 1961 SC 537; PLD 1963 SC 203; PLD 1965 SC 605; 1983 PCr.LJ 670; 1983 PCr.LJ 623; 1987 PCr.LJ 1091 and PLD 1991 Quetta 36 ref.

Adnan Ahmad Khawaja for Petitioner.

Ghulam Ali Raza with Miss Naeema Batool, Deputy Collector Custom and M. Naveed Chishti for Respondents.

Date of hearing: 29th May, 2012.

JUDGMENT

AYESHA A. MALIK, J.---This petition impugns the action undertaken by the respondents Nos.1, 2 and 4 of withholding the original import authorization permit issued by the respondent No.3 in favour of the petitioner.

2.It is the case of the petitioner that he holds an import authorization permit (IAP) for import of non-prohibited bore arms and ammunition. The IAP was issued by the respondent No.3 on 18-9-2007. The IAP provides for the annual quota to import non-prohibited bore arms and ammunition. As per the contention of the counsel for the petitioner, the sole authority to issue, withhold, suspend or revoke the IAP is the respondent No.3. On 17-1-2012, the petitioner received a show-cause notice from the respondent No. 1. In terms of the notice, the petitioner was informed that it has exceeded its quota limit as authorized bytherespondentNo. 3 for the import of non-prohibitedborearms.Itisalsoallegedinthenoticethatthepetitionerhasusedmorethan one NTN number to import the said ammunition, thereby attempting to hoodwink the custom authority. The petitioner filed his reply to the showcausenoticeandthereafter,hasbeenmakingappearanceinthe inquiry proceedings. It is the case of the petitioner that under the pretext of this show cause notice, the respondents Nos. 1,2and4cannot hold on to the original IAP and as such they are required toreturn the same tothePetitioner.ReliancehasbeenplacedonPLD1961SC537,PLD1963SC203,PLD1965SC605,1983 PCr.LJ 670, 1983 PCr.LJ 623, 1987 PCr.LJ 1091 and PLD 1991 Quetta 36:

3.On the other hand, learned counsel for the respondents Nos. 1, 2 and 4 has argued that this writ petition is not maintainable as adequate remedy is provided under the Customs Act, 1969. For this he places reliance on PLD 2008 SC 779 and PLD 2010 SC 969. He has also argued that the respondents are in the process of conducting an inquiry on the excess import of the non-prohibited bore arms and ammunition. Reply and para wise comments have been filed in which they have stated that the original IAP is evidence in the pending inquiry and as such during the course of these proceedings; the respondents can withhold the IAP. It is also their case that upon completion of the inquiry, a report will be sent to the respondent No.3, who will then finally decide on the matter. He has placed reliance on sections 168, 179 and 180 of the Customs Act, 1969.

4.Heard learned counsel for the parties and reviewed the record available on the file.

5.On the issue of maintainability, since it is the case of the petitioner that the respondents 1, 2 and 4 have exceeded their jurisdiction and are acting contrary to the law the remedy provided under the Customs Act, 1969 is not efficacious as the stated respondents cannot decide whether they have exceeded their jurisdiction or whether the respondent No.3 is the competent authority to withhold the original IAP, if required. Therefore this petition is maintainable and will be decided on its merits.

6.Learned counsel for the petitioner relies upon the Import Policy Order, 2009 (as amended up to 15 March, 2011) (IPO). It is his case that the IAP is issued pursuant to the IPO and any dispute in relation to the import status of any item has to be resolved by the respondent No.3. The matter in issue in this writ petition is whether the respondents 1, 2 and 4 can withhold the IAP of the petitioner given that the respondent No.3 is the issuing authority for the IAP.

7.The IAP allows the petitioner to import a given quantity of non-prohibited bore arms and ammunition on an annual basis. It provides the annual quota for the years 2008-2009, 2009-2010, 2010-2011 allowed in favour of the petitioner. The IAP refers to a notification issued by the respondent No.3 dated 25-1-2005. This notification provides for the procedure for import of non-prohibited bore arms and ammunition. As per the notification since this is a banned item, the respondent No.3 can authorize its import in terms of the guidelines provided under the said notification. In this regard the notification provides for an eligibility criteria in para 4 and the criteria in para 5. Subsequent to the 2005 notification, another notification was issued on 27-8-2007 regulating the existing entitlements issued by the respondent No.3. Para 2-c of this notification is of the particular importance as it provides that:--

"Custom will ensure that the importer was not involved in violation of law relating to custom".

Likewise Para 2-d provides that:-

"Bank will ensure that importer never indulge in violation of procedure of SBP foreign exchange regulation".

A review of both these notifications leads to the conclusion that since the import of non-prohibited bore arms and ammunition was banned, the said notifications prescribed the procedure relating to grant of permits for such imports. This means that it allowed respondent No.3 to permit the import of the non-prohibited bore arms and ammunition, in a prescribed manner and by quantifying the import entitlement.

8.As part of the procedure regulating the issuance of import authorization permits, the 2007 notification provides that the customs authority will ensure that there has been no violation of any law relating to custom and the State Bank of Pakistan to ensure that there will be no violation of any foreign exchange regulation. This means that the respondent No.3 merely prescribes the quota for the import of the non-prohibited bore arms and ammunition through the IAP. The import per se will be regulated by the customs authority under the Customs Act, 1969. Mere permission by the respondent No.3 to import a fixed quota of the non-prohibited bore arms and ammunition will not divest the customs authority from its jurisdiction. Section 16 of the Customs Act, 1969 envisages the role of the Federal Government which is to prohibit or restrict the bringing into or taking out of Pakistan of any goods of specified description by air, sea or land. Any violation of the prohibition or restrictions set out by the Federal Government will fall within the scope of the customs authority under the Customs Act, 1969. The roles are distinctive as the Federal Government decides what import or exports to prohibit or restrict whereas the Customs Act controls and regulates the act of the import and the export. In furtherance of section 16 of the Customs Act, 1969 and in terms of Section 3 of the Import and Exports (Control) Act, 1950 the IPO is issued wherein the Federal Government provides the prohibition and restriction on imports. Section 6 of the IPO 2009 (as amended up to 15 March, 2011) provides that:--

"Notwithstanding anything contained in this Order, the prohibition, restriction, condition and requirements as prescribed under any law, Act or rules, for the time being in force, shall be applicable, mutatis mutandis, on specified imports."

Section 8 provides that:-

"Any dispute or clarification regarding import status of any item which cannot be resolved by the custom authority will be referred to the Ministry of Commerce for final decision."

The aforementioned provisions substantiate the case of the respondents 1, 2 and 4 that it is well within their jurisdiction to withhold the original TAP pending an inquiry. Section 8 of the IPO clarified that in case a dispute cannot be resolved by the customs authority, it may be referred to the respondent No.3. Meaning thereby that the dispute regarding import status is to be decided by the Customs Authority.

A reading of the Customs Act, 1969, the two notifications along with IPO leads me to conclude as follow:--

(1)The respondent No.3 issued the IAP dated 18th September, 2007 in favour of the petitioner in pursuance of the IPO and notification dated 2005 and 2007.

(2)The TAP provides for an entitlement to import a prohibited item and it quantifies the amount that can be imported on an annual basis.

(3)The IAP does not take away the jurisdiction of the custom authorities to investigate, inquire, adjudicate under the Custom Act, 1969 in terms of any import in Pakistan.

(4)The fact that the respondent No.3 issued the IAP does not mean that the respondents Nos. 1, 2 and 4 cannot withhold the original IAP or seize the original IAP. This stands to reason because if there is a violation of any custom law then it is for the custom authority to proceed under their Act and send a final recommendation to the respondent No.3 for cancelling the IAP, if required. In the same way, if there is a violation of any State Bank regulation it is for the State Bank to conclude its inquiry, investigation and send a recommendation in terms thereof to the respondent No.3.

(5)Respondents Nos.1, 2 and 4 are fully authorized to withhold the original IAP of the respondent No.3 pending an inquiry conducted under the Custom Act and upon its conclusion they can send their recommendation to the respondent No.3 along with original IAP.

(6)Section 168(3) of the Customs Act, 1969 empowers the stated respondents to seize any document or thing which in his opinion will be useful evidence in any proceeding under the Act.

9.The afore stated conclusions are fortified by the statement of the respondent No.3 through the Deputy Attorney General, who appeared in Court and stated that they are the issuing authority for the IAP and they can cancel the IAP if required. However they have nothing to do with the present dispute. The respondent No.3 also filed an application to have its name deleted from these proceedings as they are a pro forma party. The prayer of deletion from the petition is based on the following statement:--

"Messrs Yousaf Zai Arms and Ammunition Dealers Peshawar was issued import authorization of NPB arms and ammunition of Rs.04 Million on annual basis vide this Ministry Letter No.19 (132)/2005 Imp-I dated 18th September, 2007 (Annex-1). The detail particulars of Messrs Yousaf Zai Arms and Ammunition Dealers Peshawar were forwarded to custom authorities on their request. (Annex-II). Para wise comments from Ministry of Commerce may be treated as "NIL"."

10.If the matter of withholding the original IAP fell solely within the jurisdiction of the respondent No.3, then they would have asserted their position. To the contrary, they have forwarded the relevant information to the custom authority, meaning thereby that even they recognize that the custom authority is acting in accordance with the law and can withhold the original IAP.

11.As to the cases referred to by the counsel for the petitioner, the same do not advance his case as they do not pertain to the matter in issue. He has also placed reliance upon an order dated 27-3-2012 wherein the Deputy Collector has written that the original IAP may be returned to the petitioner. However, the respondents 1, 2 and 4 produced another order of 2-5-2012 which provides that the noting of the Deputy Collector was conditional to certain documents being provided. Since to date the documents have not been provided, therefore it was advised that pending the inquiry the original IAP should not be returned to him. It is noted that the order of 27-3-2012 does not confer any right upon the petitioner that the original IAP has to be returned to it. Nor does it cast an obligation on the stated respondents to return the original IAP to the petitioner. Furthermore, the said order of 27-3-2012 cannot be read in isolation as it is part of the internal record of the respondents Nos. 1, 2 and 4 qua the inquiry pending against the petitioner. The same does not operate as an order which can be enforced. At best it is an observation by the Deputy Collector and that to a conditional observation. Since the conditions were never satisfied by the petitioner, he cannot seek its enforcement. Therefore the act of withholding the original IAP of the petitioner's in accordance with the powers conferred upon the respondents Nos. 1, 2 and 4 under the law.

12.For the aforementioned reasons, this petition is dismissed.

K.M.Z./J-18/LPetition dismissed.