ASHRAF FORWARDING AGENTS VS FEDERATION OF PAKISTAN, 2015 PTD-KARACHI-HIGH-COURT-SINDH 1749 (2015)

Customs Rules, 2001---

----R. 102---Constitution of Pakistan, Art. 199---Constitutional petition---Import of goods---Suspension of license of clearing agent---Petitioner, who was a clearing agent, impugned the letter issued by Customs Authorities whereby the license of the petitioner was suspended on the ground that certain importers who were being represented by the petitioner had defaulted in payment of duty and taxes---Held, that procedure to be adopted while initiating proceedings against defaulting license holders appeared to have not been adopted by the Customs Authorities in the present case---High Court with consent of parties; disposed of the petition with direction to Customs Authorities to confront the petitioner with the violations, if any, committed by the petitioner to the provisions of Customs Act, 1969, the Customs Rules, 2001 or to the terms and conditions of the license, where after appropriate action may be taken after providing an opportunity of being heard to the petitioner---Impugned letter / order was set aside and the Authorities were directed to restore license of the petitioner with the observation that the Customs Authorities would be at liberty to take appropriate actions against the petitioner strictly in accordance with law and after providing an opportunity of hearing to the petitioner---Constitutional petition was disposed of, accordingly.

Aqeel Ahmed for Petitioner.

Dilawar Hussain, Standing Counsel for Respondent No.1.

Ms. Afsheen Aman and Ilyas Ahsan Law Officer Legal for Respondent No.3.

Date of hearing :15th January, 2015.

ORDER

AQEEL AHMED ABBASI, J.---Through instant petition, the petitioner has expressed his grievance against the impugned letter dated 23-4-2014 issued by the Assistant Collector Recovery Officer, Model Collectorate of Customs, Port Muhammad Bin Qasim, Karachi, addressed to the Assistant Collector of Customs (Licensing), Model Collectorate of Customs Appraisement (West), Customs House, Karachi, to block the I.D. of the petitioner i.e. Clearing Agent, on the pretext that since certain importers, who were being represented by the petitioner, have defaulted in payment of duty and taxes. It is contended by the learned counsel for the petitioner that without issuance of any show-cause notice or without providing opportunity of being heard the I.D. of the petitioner has been blocked along with other clearing agents on the pretext that since certain amount in respect of duty and taxes is outstanding against the importers, therefore, for the purposes of recovery of such amount the I.D. of the petitioner shall remain blocked. Per learned counsel, there is no legal provision in the Customs Act, 1969 or Rules and Regulations made thereunder, relating to license of the petitioner to carry on his business as a Clearing Forwarding Agent, whereby in case of any default in payment of duty and taxes by some importer, the I.D. of a clearing agent could be blocked or license could be suspended, and that too without issuance of any show-cause notice or providing opportunity of being heard. Per learned counsel, no detail regarding the alleged amount of default in respect of duty and taxes by the importers has been provided, whereas, unilateral arbitrary action has been taken by the respondents. Per learned counsel, the Federal Board of Revenue vide letter dated 20-3-2012 issued to all Collectorate of Customs has already directed that the user I.D. or the licence of the clearing forwarding agent may not be blocked/suspended only for the purposes of recovery of outstanding government dues, whereas, legal procedure as provided under Section 202 of the Customs Act and Chapter XI of Customs Rules, 2001, has to be adopted, which according to learned counsel, has not been adopted by the respondent while issuing the impugned letter. It has been prayed that impugned letter/order may be set-aside and the I.D. of the petitioner may be directed to be de-blocked.

2.Notices were issued, pursuant to which Ms. Afsheen Aman, Advocate along with Mr. Ilyas Ahsan shown appearance and filed comments on behalf of the respondent. However, when confronted with the factual and legal position as stated by the learned counsel for the petitioner it has been candidly stated that though there are certain amounts outstanding against the importers, who were being represented by the clearing forwarding agents, including the petitioner, whereas, in terms of Rule 102, licence can be suspended without issuance of show-cause notice. However, it has been stated that the procedure to be adopted while initiating proceedings against the defaulting licence holders, appears to have not been adopted by the respondent in the instant case. It has been contended by the learned counsel for the respondent that instant petition may be disposed of with the directions to the respondents to confront the petitioner with the violations, if any, committed by the petitioner either to the provision of Customs Act, 1969 or to the Rules and the terms and conditions of the licence, whereafter, appropriate action may be taken against the petitioner, after providing opportunity of being heard. Learned counsel for the petitioner does not oppose the disposal of the instant petition in the aforesaid terms. however, submits that the impugned letter may be set-aside, whereas, the respondents may be directed to de-block the user I.D. of the petitioner, whereas, licence of the petitioner may be restored.

3.In view of hereinabove, we hereby set-aside the impugned order/letter dated 23-4-2014 in respect of the petitioner, and direct the respondents to de-block the user I.D. and restore the licence of the petitioner. However, the respondents shall be at liberty to take appropriate action against the petitioner in case of any default or violation of Customs Act, Rules or terms and conditions of the licence strictly in accordance with law, after providing an opportunity of being heard to the petitioner.

Petition stands disposed of in the aforesaid terms along with listed application.

KMZ/A-54/LOrder accordingly.