AMIR SIDDIQUI VS FEDERATION OF PAKISTAN, 2014 PTD-KARACHI-HIGH-COURT-SINDH 582 (2014)

Customs Act (IV of 1969)---

----Ss.186 & 202---Constitution of Pakistan, Art. 199---Constitutional petition---Detention of goods---Pendency of inquiry---Change of address---User identity, cancellation/blocking of---Petitioner was importer of goods from abroad who had dispute with customs authorities over one consignment and pending inquiry, authorities had also detained other consignments of the importer and blocked his user's identity---Validity---Authorities could detain such goods, in respect of which inquiry or investigation was pending and not the goods which had been or were being imported by a person---Subsequent imported goods belonging to same owner could only be detained once a fine or penalty had allegedly been imposed in respect of any other goods and the same remained unpaid---All subsequent imports could not be detained or withheld clearance on the premise that some inquiry or investigation was pending in respect of some other goods---Such action was not permitted under S. 186 of Customs Act, 1969---Authorities were only authorized to take action for issuance of a detention notice in terms of S. 202 of Customs Act, 1969, once the amount alleged to have been evaded was finally adjudicated and decided against a person---Procedure and mechanism provided in terms of S. 202 of Customs Act, 1969, was entirely independent of any action taken in terms of S. 186 of Customs Act, 1969---Change of address of importer was no ground for detention of goods, as change of addresses were not updated in record of Federal Board of Revenue due to a very difficult and cumbersome procedure---No notice for cancellation of user-ID or blocking name of importer was issued and all duties and taxes had been collected from importer despite the fact that allegedly his address was not correct---Consignments in question were unlawfully detained as provisions of S. 186 of Customs Act, 1969, did not empower the authorities to do so---Petition was allowed accordingly.

Syed Muhammad Razi v. Collector of Customs, (Appraisement) Karachi 2003 PTD 2821 ref.

Zain A. Jatoi for Petitioner.

S. Mohsin Imam Wasti D.A.G. for Respondent No.1.

Ms. Masooda Siraj for Respondent No.2.

Kashif Nazeer for Respondents Nos. 3 and 4.

Date of hearing: 24th December, 2013.

JUDGMENT

MUHAMMAD JUNAID GHAFFAR, J.---Through this common order we intend to dispose of C.Ps. Nos. D-5183 and 5184 of 2013 which have similar facts with little variation.Briefly, the relevant facts in C.P. No. D-5183 of 2013 are that the petitioner imported a consignment of Electrical Power Tools and spare parts from China and filed a Goods Declaration ("GD") dated 3-9-2013 and paid the leviable duty and taxes on the same. In C.P. No. D-5184 of 2013 the petitioner has imported 3 different consignments of electrical equipments, electronic scales and wire mesh and filed GD's dated 27-8-2013, 2-9-2013 and 9-9-2013 and has paid the duty and taxes leviable thereon. It is stated that the respondent No. 2 refused to hand over delivery of the consignments to the petitioner's even though, the GD's were out of charged after completion of all the formalities. It is further stated that the only reason as conveyed to the petitioners was that an F.I.R. has been registered by the respondents Nos. 3 and 4 against the petitioner's proprietorship concern and therefore, the NTN/User ID has been blocked and no further consignments can be released to the petitioner. It is further averred that the said F.I.R. has been lodged regarding clearance of goods on the basis of fake GD's and the petitioner had nothing to do with the offence as alleged in the F.I.R. as those consignments were not imported by the petitioner. It is further stated that as an abandoned pre-caution the petitioner has obtained pre-arrest bail from the Court of Special Judge, Customs and Taxation. According to the petitioner his namehasbeenfalselyimplicatedintheF.I.R.andconsequentlythe blocking of the NTN/UserIDisalsounjustified.Itisfurtherstated that on account of such illegal act the petitioner is suffering huge losses.

2.Mr. Zain A. Jatoi learned counsel appearing on behalf of both the petitioners contended that in so far as the petitioners are concerned they did not import any consignment as stated in the F.I.R. and in fact it is the case of the respondents Nos. 3 and 4 that those goods were removed illegally and unlawfully on the basis of fake GD's, therefore the question of implicating the petitioners does not arise. It is further contended that even the National Tax Number and the Sales Tax Registration numbers mentioned in the F.I.R. are incorrect. The learned counsel further contended that the persons who were nominated in the F.I.R. have no relation with the petitioners. Per learned counsel even otherwise merely registration of F.I.R. does not justifies the action of blocking and detaining the petitioner's duty paid consignments. Learned Counsel further submitted that till date no show-cause notice has been issued in respect of the consignments mentioned in the F.I.R. and further, even the Customs Officials who had managed and supervised the clearance of those consignments allegedly on the basis of fake GDs have not been implicated in the case. The learned counselfurther contended that in so far as the consignments covered by the instant petitions are concerned all duties and taxes as determined by the respondent No. 2 have been paid and neither the goods are liable to confiscation nor any other irregularity has been detected by the respondent No. 2. Learned counsel relied upon the case of Syed Muhammad Razi v. Collector of Customs, (Appraisement) Karachi, reported as 2003 PTD 2821.

3.Conversely Mr. Kashif Nazeer Advocate appearing on behalf of respondents Nos. 3 and 4 contended that various consignments had been removed from the port area on the basis of fake GD's and such GD's bear the name of the petitioners as importer. Per learned counsel on the basis of fake and bogus GD's huge amount of duty and taxes have been evaded and consequently separate F.I.Rs. have been lodged against various persons. It was further contended that the petitioner in C.P. No. D-5183 of 2013 after obtaining a pre-arrest bail had recorded his statement dated 22-11-2013 in which the petitioner stated that he is a poor man and one Mr. Iqbal Shah offered him to open a company under his name and he has given him Rs.2000 for each consignment imported in the name of such company. Per Learned, the petitioner stated that he has no idea how a firm is opened or NTN is obtained and all these things are being managed by Mr. Iqbal Shah. Learned counsel further contended that the address mentioned in the import documents was also incorrect as nobody was available on that address. Per learned counsel the instant petitions have been filed through an attorney and since the petitioner in his statement has disowned the import of these consignments, as such the petitioner does not merit equitable relief. It is further contended that in fact some voluntary payments have also been made by persons who had purchased the goods as stated in the F.I.R. Learned counsel referred to section 186 of the Customs Act ("the Act") to contend that the respondents were authorized and lawfully justified in detaining the future consignments of the petitioners as an inquiry and investigation is pending in respect of earlier imports allegedly cleared against fake GD's. Learned counsel further submits that though till date no contravention report has been prepared, but the same is in the process of being finalized and thereafter show-cause notices will be issued in due course of time. However, learned counsel conceded that insofar as present consignments covered by the instant petition are concerned, no irregularity has been detected nor any proceedings are pending.

4.Mr. S. Mohsin Imam learned D.A.G. contended that question of facts are involved in the instant petitions as the ownership of the goods has been denied by the petitioner in his statement recorded before the Investigating Officer, hence the petitions are not maintainable.

5.Ms. Masooda Siraj appearing on behalf of respondent No. 2 in addition to adopting arguments of Mr. Kashif Nazeer, contended that this was a case of fiscal fraud in terms of section 32-A of the Act and hence the petitions were liable to be dismissed.

6.We have heard all the learned counsel and the learned D.A.G. and have also perused the record and the case-law relied upon by them. By consent of all, the matter was taken up for disposal at Katcha peshi stage.

7.It appears that the respondents Nos. 3 and 4 have registered separate F.I.Rs. on the basis of some credible information that various persons are involved in fraudulent/illegal removal of dutiable imported goods from the Of-Dock Terminal of Messrs Qasim Freight System (Pvt.) Limited, Port Qasim, Karachi ("QFS") against fake Goods Declarations in collusion with other associates in the crime. According to the contents of the F.I.R., 7 consignments purportedly imported in the name of the petitioner in C.P. No. D-5183 of 2013 were cleared from "QFS" by presenting fake GD's. The said GD's on verification from the computerized online system were found to be forged as no such GD's were filed and neither any numbers were allotted by the computerized system. The case of the respondents is that even National Bank of Pakistan confirmed that no payments were received by them against the said GD's. On further inquiry it transpired that the documents for delivery of the goods in respect of these consignments were presented by one Ghazi Anwar Mustafa and Abdul Waheed who had obtained the delivery of these consignments. Similarly, in C.P. No.D-5184 of 2013, 16 consignments were purportedly cleared from "QFS", in the same manner as stated above by the same persons. Subsequently, after hectic effortsthe truck drivers who had managed and wereassociatedintaking delivery of these consignments, were traced out and they identified the warehouse where these goods were offloaded by them. On carryingoutsearchoftheWarehouseintermsof section 163oftheAct,the ownerofthewarehouseclaimedtheownershipofthe goods and submitted import documents, scrutiny of which is underway. However during cross question he admitted that he had purchased 5 consignments from one Mr. Ghazi and had already sold them out in the local market. He also provided copies of 5 bill of ladings and when he was informed that the clearance against these bill of ladings have been made on fake GDs, he furnished a pay order for Rs.21,00,000 as a voluntary payment of duty and taxes against the aforesaid 5bills of lading.

8.Form the perusal of the entire record, it transpires that the investigation in respect of these consignments as stated above, is still going on since September, 2013 and till date no final challan has been filed by the respondents Nos. 3 and 4. It also transpires that no proceedings of whatsoever nature have been initiated for carrying out the adjudication in the matter as neither any contravention report has been finalized nor any show-cause notice has been issued in respect of these consignments allegedly cleared on the basis of fake GD's. It is merely the F.I.R. which is in field and the case is still under investigation. However the respondents Nos. 3 and 4 have directed the respondent No.2 to block the NTN/User ID of the petitionerand also for detaining the future consignments being imported by the petitioners on the basis of these F.I.Rs. In support of this the learned counsel for respondents Nos.3 and 4 hadrelied upon the provision of section 186 of the Act which is reproduced as under:--

"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 supplied).

(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."

9.From the perusal of the above provision, it transpires that when any fine or penalty has been imposed, or while imposition of any fine or penalty is under consideration, or any inquiry or investigation is pending, 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 beencompleted.Itisfurtherprovidedundersub-section (2) that 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. In the instant matter only subsection (1) is relevant. We have perused this provision and are of the view that the contention of the learned counsel for respondents Nos. 3 and 4 for justifying the impugned action on the basis of this provision is totally misconceived and is hereby repelled. It is for the reason, that this provision enables the respondents to detain such goods, in respect of which inquiry or investigation is pending and not the goods which have been or are being imported by a person. The subsequent imported goods belonging to the same owner can only be detained once a fine or penalty has been imposed in respect of any other goods and the same remains unpaid. By no stretch of imagination all subsequent imports can be detained or withheld clearance on the premise that some inquiry or investigation is pending in respect of some other goods. In our opinion no such action is permitted under this provision. The respondents are only authorized to take action for issuance of a detention notice in terms of section 202 of the Act, once the amount alleged to have been evaded has been finally adjudicated and decided against a person. The procedure and mechanism provided in terms of section 202 of the Act is entirely independent of any action taken in terms of section 186 of the Act. It is not the case of the respondents that any adjudication has been done either in respect of the goods allegedly cleared against fake GD's or even the goods covered by the instant petitions and thereafter detention notices have been issued. It is only on the basis of registration of F.I.R., that such an extreme action of blocking the NTN/User ID as well as detention of goods has been ordered by the respondents Nos. 3 and 4. The learned counsel for the respondents Nos. 3 and 4 had also contended that the addresses mentioned on the import document are also incorrect. In our view this is hardly a ground for detention of goods, as the addresses do change very commonly, and are not updated in the record of FBR due to a very difficult and cumbersome procedure. Further, no notice either for cancellation of User-ID or blocking the name of the petitioner has been issued in this regard. Not only this all duties and taxes have been collected from the petitioners despite the fact that allegedly, the addresses of the petitioners are not correct. If any action ought to have been taken, it was required to be taken immediately after registration of F.I.R., and before accepting and allowing processing of GD's including payment of taxes and not subsequently after they have been processed and out of charged. Similarly, with utmost respect, at this stage of the case, the statement of the petitioner before the Investigating Officer as relied upon by the learned counsel for the respondents Nos. 3 and 4 cannot be taken in to account as it has no sanctity until so proved at the trial.

10.Therefore, we are of theview that in so far as the consignments covered by the instant petition are concerned they have been unlawfully detained as the provisions of section 186 of the Act do not empower them to do so, as it is only in respect of such goods against which an inquiry and investigation is pending. The learned counsel for respondents Nos. 3 and 4 as well as respondent No. 2 have conceded that in so far as the present goods as covered by these petitions are concerned, no inquiry or investigation is pending in respect of these goods nor any notice has been issued, therefore, the impugned action of detention of goods and blocking of the NTN /User ID of the petitioners is declared to be illegal, unlawful and is hereby set aside. However, the above observations hereinabove are only in respect of the consignments covered by the instant petitions and their detention under section 186 of the Act and shallnothaveanybearingontheproceedingspendinginrespectofthe earlier consignment's allegedly cleared against fake GD's which shall be concluded independently in accordance with law and on its own merits.

11.On 24-12-2013 we had allowed the instant petitions in the following terms:--

C.P. No. D-5183 of 2013.

"For reasons to be recorded later on, petition is allowed. Respondents are directed to forthwith release the petitioner's duty/taxes paid and out of charge consignment declared videGD No.KAPW-HC-26844 dated 3-9-2013, and issue delay detention certificate in accordance with law. The respondents are also directed to forthwith unblock the petitioner'sNTN-User-ID."

C.P. No. D-5184 of 2013.

"For reasons to be recorded later on, petition is allowed. Respondents are directed to forthwith release the petitioner's duty/taxes paid and out of charge consignment declared vide GD No.KAPE-HC-1586 dated27-8-2013,KPPI-HC-10214dated2-9-2013, GD No. KAPW-HC-30042 dated 9-9-2013 and issue delay detention certificate in accordance with law. The respondents are also directed to forthwith unblock the petitioner's NTN-User-ID."

12.The above are the reasons in support of our short order dated 24-12-2013.

MH/A-11/SindhPetition allowed.