RAFIQUE ENTERPRISES VS FEDERATION OF PAKISTAN, 2015 PTD-LAHORE-HIGH-COURT-LAHORE 2654 (2013)

Customs Act (IV of 1969)---

----S.26---Constitution of Pakistan, Art.199---Constitutional petition---Information to be furnished by importer---Release of seized consignments---Consignments were opened in presence of Clearing Agent of importers---Department was able to check consignments and had obtained all necessary information about consignments for purpose of establishing their case on conditions in which consignments were imported---Held, that there was no justification for department to seize the consignments---Consignments should have been released upon payment along with surety bonds to the satisfaction of the department---Department would continue with their investigation strictly in accordance with law---Importer was directed to participate in the investigation and provide department with necessary documents called for vide notice under S.26 of Customs Act, 1969---Order accordingly.

Mian Abdul Ghaffar for Petitioner.

Irteza Ali Naqvi for Respondents Nos. 3 and 5.

Nadeem Mahmood Mian for Respondents Nos. 2 and 4 along with Jamil Nasir Khan, Additional Director Customs Intelligence.

Date of hearing: 13th September, 2013.

JUDGMENT

AYESHA A. MALIK, J.---Through this single judgment, I intend to dispose of Writ Petitions Nos. 21279/2013 and 21281/2013 as common question of law and facts are involved in both these petitions.

2. The basic grievance of the petitioners is that their consignment of Blender and Single Juicer in W.P. No.21281/2013 and consignment Jug, Mill and small Cups in W.P. No.21279/2013 have been seized by the respondents Nos. 2 and 4 in contravention to the law.

3. Learned counsel for the petitioners argued that consignments were imported on 23-8-2013, assessment was made by the competent authority, duties were paid by the petitioners and the consignment were cleared. Thereafter the containers of the petitioners were seized by the respondents Nos. 2 and 4 on 28-8-2013. Learned counsel argued that the interception and seizure of the consignments which have been examined, assessed and cleared by the appropriate Custom Officers after payment of duty and taxes is illegal. Learned counsel argued that the respondents Nos. 2 and 4 have issued notice to the petitioners under section 171 of the Customs Act, 1969 (1969 Act) wherein it has been alleged that the petitioners have imported consignments in CBU condition yet they had them valued in terms of the SKD valuation. It has further been alleged that the petitioners have made mis-declaration which is a violation of sections 32(1) and 178 of the 1969 Act.

4. Learned counsel on behalf of the respondent No.2 and respondent No.4 who appeared in person, explained that upon receipt of information that the petitioners have made a mis-declaration and have fraudulently deprived the exchequer of duty and taxes leviable on the imports, the consignments were seized. Notices under Section 171 of the 1969 Act were served on to the petitioners. Thereafter notice under Section 26 of the 1969 Act have also been issued to the petitioners for providing information which is required for the purposes of investigation. Learned counsel argued that the petitioners are not participating in the inquiry and have not provided the information requested by the respondents, hence the respondents are unable to further inquire in the matter. Learned counsel also explained that both the petitioners before this Court are real brothers and that they have deliberately mis-declared the manner in which the consignments have been imported so as to avoid the proper levy of custom duty. Presently the respondents are of the opinion that a short payment of Rs.7,36,802 each, has been made by the petitioners.

5. I have heard learned counsel for the parties and reviewed the record available on the file.

6. The main issue in the instant Writ Petitions is with respect to the seizure of the consignments imported by the petitioners. Admittedly, an investigation is pending before the Senior Intelligence Officers for which notices under Section 26 of the 1969 Act have been issued, therefore, the petitioners are not entitled to the prayer of declaration with respect to the assessment and valuation of the consignments. The third prayer in the instant Writ Petitions is with respect to the seizure of the consignments for which an application being C.M. No.2/2013 was moved for release of the consignments. The basic contention of learned counsel for the petitioners is that there is no reason or justification for the seizure of the goods and that the petitioners are willing to furnish security in the amount of Rs.7,36,802 each for the release of the consignments. Learned counsel for respondents Nos.2 and 4 was asked to explain the necessity to retain the consignments seized by the sated respondents. Learned counsel responded by explaining that since the matter was still under investigation the consignments were required till the completion of the investigation and. adjudication process. In this case the main question is of mis-declaration and short payment of customs duty and taxes. The consignments were opened in the presence of the clearing agents of the petitioners. The respondents were able to check the consignments and have obtained all necessary information about the consignments for the purposes of establishing their case on the conditions in which consignments were imported. I am of the opinion that there is no justification for the respondents to keep the seized consignments and that the consignments should be released to the petitioners upon payment of post-dated cheques equal to Rs.7,36,802 each along with surety bonds to the satisfaction of the respondent No.3. The respondents Nos.2 and 4 may continue with their investigation strictly in accordance with law and the petitioners are directed to participate in the present investigation and provide the respondents Nos.2 and 4 with the necessary documents called for vide notice under Section 26 of the 1969 Act.

7. In the light of the aforesaid, the petitioners are disposed of.

RR/R-28/LOrder accordingly.