AL IHSAN ELECTRONICS TRADING (LLC) VS FEDERATION OF PAKISTAN through Secretary Revenue Division
2014 P T D 1833
[Sindh High Court]
Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ
AL IHSAN ELECTRONICS TRADING (LLC)
Versus
FEDERATION OF PAKISTAN through Secretary Revenue Division and 3 others
Constitutional Petition No. D-1616 of 2014, decided on 27/06/1927.
2014.
Customs Act (IV of 1969)---
----S.138---Constitution of Pakistan, Art. 199---Constitutional petition---Frustrated cargo---Re-export of consignment---At the time of examination of goods by Customs authorities it transpired that goods were different than those mentioned in Goods Declaration Form---Importer claimed that consignment in question had mistakenly arrived in Pakistan and he sought permission to re-export the same---Request of importer to treat the goods as "frustrated cargo" and to allow its re -export in terms of S. 138 of Customs Act, 1969, was duly accepted and order had also been passed in such regard by concerned authority---Order under S. 138 of Customs Act, 1969, was not recalled till date-- Effect---High Court directed the authorities to act upon such order in its letter and spirit which was valid and in field---Petition was allowed in circumstances.
Zain A. Jatoi for Petitioner.
Khalid Mahmood Dhoon, Ilyas Ahsan Law Officer Customs and
Fayyaz Rasool, Additional Collector of Customs for Respondents.
Ashfaq Rafiq Janjua Standing Counsel.
Date of hearing: 11th June, 2014.
JUDGMENT
MUHAMMAD JUNAID GHAFFAR J.---Through instant petition the petitioner has prayed that the respondents may be directed to allow Re-export of the container/goods covered by the instant petition, treating them as "Frustrated Cargo" in terms of section 138 of the Customs Act 1969 ("The Act").
2. Briefly, facts as stated in the memo. of petition are that the petitioner is registered under the laws of Dubai, U.A.E, and is engaged in the business of import and export, executed a shipment of 1000 units of Microwave ovens and other related items in favour of Messrs Awan Group, having business at UG-157, Deans Trade Centre, Saddar Road, Peshawar, on or about 26-1-2014 from Dubai via Karachi. On arrival of goods at Karachi, the Bonded Carrier engaged by the consignee for transshipment of goods from Karachi to Peshawar filed a Transshipment GD dated 4-2-2014, whereafter the goods were examined by the respondents and the consignee of the goods was informed that the consignment in question contained various mobile phones and satellite receivers instead of the declared goods. The consignee of the goods immediately informed the petitioner about such wrong shipment of goods and after scrutiny at the end of the petitioner, it transpired that the goods which were required to be shipped to South Africa, had been mistakenly shipped to the consignee at Karachi/Peshawar, Pakistan. It is further stated that the petitioner immediately requested the respondents vide letter dated 15-2-2014 to allow Re-export of the said consignment, as it was meant for shipment to South Africa, and was mistakenly shipped to Karachi/Peshawar; hence the same was to be treated as "Frustrated Cargo" within the meaning of section 138 of the Act. It is further stated that in the meantime the Bonded Carrier, engaged on behalf of the consignee, also applied for cancellation of the Transshipment GD, which request was processed and allowed and purportedly an order in terms of section 138 of the Act was also passed in the relevant file by the respondents, whereby the request of the petitioner was accepted by treating the goods/container in question as "frustrated cargo". However, subsequently the goods were not allowed to be re-exported by the respondents and through instant petition the petitioner has impugned such action of the respondents.
3. Learned counsel for the petitioner has contended that the case of the petitioner is that subject consignment is in fact a "frustrated cargo" and is fully covered in terms of section 138 of the Act; as the goods were wrongly and due to mistake of the shipper were shipped to the consignee at Karachi/Peshawar. Per learned Counsel the respondents have allowed cancellation of the Transshipment GD, and thereafter have also approved the re-export of cargo after following the prescribed procedure, whereas, the Collector of Customs has also approved the re-export of goods in terms of section 138 of the Act, through a proper order passed in the relevant file (Copies of order sheets and the extracts of the orders have been placed on record). It has been contended by the learned Counsel that the impugned action of detaining the consignment and asking the consignee/petitioner to file a home consumption GD besides being mala fide, is illegal and cannot be sustained in the given facts and circumstances of the instant case. It has been prayed that respondents shall be directed to comply with the orders of the Collector already passed in the instant case and the re-export of the frustrated cargo be allowed.
4. Conversely, the learned counsel for the respondents duly assisted by the Customs officials present in Court, contended that the order for allowing re-export has been obtained by the petitioner by misrepresentation as the petitioner did not disclose the fact that a Transshipment GD had already been filed by the Bonded Carrier on behalf of the consignee, therefore, the goods in question cannot be termed as frustrated cargo as this is a case of gross mis-declaration; hence the instant petition is liable to be dismissed.
5. We have heard all the learned counsel and perused the record with their assistance. Since a short controversy is involved, by consent of all instant petition is being disposed of at Katcha Peshi stage.
6. It appears that the facts to the extent that the petitioner has shipped the instant consignment to its consignee at Peshawar via Karachi, who had initially, filed a Transshipment GD for onward transportation to Peshawar Dry Port, which on examination is found to contain certain goods, which were not declared in the import documents, are not in dispute. It is also not in dispute that subsequently on the request of the petitioner dated 15-2-2014, the Transshipment GD was allowed to be cancelled and the request of the petitioner has been approved by the Collector of Customs in the relevant file in terms of section 138 of the Act by treating the goods as "frustrated cargo". We have been assisted by the learned Counsel for the petitioner, who has placed on record the copies of the relevant order sheet of the file in respect of subject consignment (frustrated cargo). On perusal of the same it appears that the request of the petitioner for allowing re-export of the goods in question has been considered, and after a detailed note, narrating the facts of the entire controversy in the instant matter, the Additional Collector has recommended for allowing the re-export of the goods in question and on such recommendation the Collector of Customs has passed the order by approving the same in terms of section 138 of the Act. We have also gone through the entire order sheet of the file pertaining to subject consignment and have observed that a Transshipment GD was initially filed on behalf of the consignee, which was subsequently cancelled, whereafter, the request of the petitioner to treat the goods as "Frustrated Cargo" was recommended by the Additional Collector and was sent for approval of the Collector, who has eventually approved the recommendation for declaring the consignment as "frustrated cargo" and to allow its re-export in terms of section 138 of the Customs Act, 1969. Therefore, the contention of the learned Counsel for the respondents that the order in terms of section 138 of the Act, for re-export has been obtained by concealing the facts is not only misconceived but also contrary to the facts, hence, it is hereby repelled. The officials of the Customs department present in Court were also unable to controvert the authenticity of the copies of order sheet of the file pertaining to petitioner's consignment, who conceded that the order for allowing re-export has already been passed by the Collector and further the same has not been recalled. It would be advantageous to reproduce the relevant extract from the order sheet by the Additional Collector, placed in file before the Collector of Customs for allowing the re-export of goods under section 138 of the Act:--
Para-8. Kindly refer to the letter by Messrs Al Ihsan Electronics Trading LLC (placed opposite) for exports of the consignment, imported vide BL No. TNA/11123/KHI dated 26-1-2014; inadvertently shipped to Messrs Awan Group, Peshawar by them and the noting vide Para 1/n to 7/n ante.
Para-9. Importer as well as the supplier have requested for export of the said consignment before filing Goods Declaration. In view of the relevant documents placed opposite in the file, the consignment may be allowed to be exported by treating the same as frustrated cargo in terms of Rule 89 of Chapter VII (Frustrated Cargo) of the Customs Rules, 2001.
Sd/ (Additional Collector)
Sd/- (Collector)
7. From the perusal of the order sheet placed on record by the learned Counsel for the petitioner, authenticity of which has not been disputed by the learned counsel for the respondents and the departmental representatives present in Court, it is clear that the request of the petitioner to treat the subject goods as "frustrated cargo" and to allow itsre-export in terms of section 138 of the Act has been duly accepted and order has also been passed in this regard by the concerned Collector, whereas, such order has not been recalled till date. In view of hereinabove undisputed facts, we are left with no other option but to allow the instant petition, by directing the respondents to act upon such order in its letter and spirit which is still valid and in field. However, before parting with this judgment, we may observe that we have not recorded our finding with regard to the merits of the case nor we deem it appropriate to dilate upon the applicability of the provisions of section 138 of the Act, as the petition has been allowed in view of the peculiar facts and circumstances of the case. In view of hereinabove, we allowed the instant petition vide our short order dated 11-6-2014 whereby the respondents were directed to allow re-export of the consignment of the petitioner in terms of the order which was already passed by Additional Collector on 21-2-2014 and duly approved by the Collector of Customs as per Para 8 of the order sheet of the file of the instant case and these are the reasons for such order.
MH/A-91/SindhPetition allowed.