AL-HAMRA TRADING COMPANY VS SECRETARY, REVENUE DIVISION, ISLAMABAD, 2016 PTD-FEDERAL-TAX-OMBUDSMAN-PAKISTAN 609 (2015)

Customs Act (IV of 1969)---

----Ss. 216, 217, 193, 160, 169, 79 & 156---Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), Ss.2(3), 10, 14(4) & 22----Import of goods---Mis-declaration in description and price of imported goods---Seizure/confiscation of imported goods---Redemption of seized goods against payment of fine---Compensation claimed by importer for demurrage and container rent incurred to complainant during confiscation of imported goods---Maladministration---Scope---Complainant's/importer's goods were confiscated on the ground that the description and price of goods had not been described correctly by the importer---Complainant did not avail option of redemption of goods to avoid accumulation of port demurrage and rent of container and instead filed appeal against order-in-original---Said appeal was decided in favour of complainant, and subsequently complainant, through present complaint, sought inter alia, compensation for payment of extra demurrage and container rent from the Department---Validity---Instead of availing option to redeem the goods on payment of duties, taxes and fine; as allowed by the Adjudicating Officer, the importer/complainant filed appeal against said order-in-original and it was therefore evident that delay in clearance of goods was on part of importer himself; firstly by indulging in mis-declaration and manipulation of import documents which resulted in detailed examination of said goods and adjudication by Department---Importer/complainant also failed to avail opportunity of redemption provided to him by Adjudicating Officer---On receipt of order-in-appeal, the Deputy Collector was under an obligation to propose filing of appeal to the Customs Appellate Tribunal in terms of S. 194A of the Customs Act, 1969 read with the option given in the said order---While discharging such obligation by recommending use of departmental option to contest the appellate decision, the Deputy Collector also proposed release of goods in terms of a public notice, which allowed release of said goods without recovering of penalty and fine----Subsequently Deputy Collector issued instructions to release said goods in compliance with order-in-appeal, and such proposal was made in discharge of his obligations under law and such procedure could not be treated as mala fide---Section 216 of the Customs Act, 1969 provided that no one was entitled to claim compensation for loss or injury except on proof of neglect or on a willful act and S. 217 laid down the common law rule that where government or its servant(s) did or intended to do anything in good faith in pursuance of provisions of any law under which they were authorized to act, they shall not be liable criminally or civilly---Federal Tax Ombudsman observed that nothing in the actions of Deputy Collector smacked of mala fide, vendetta, hostility, or violation of importers' rights and his acts were bona fide and lawful; which were duly protected under Ss. 216 & 217 of the Customs Act, 1969; and thus no case for maladministration was made out and furthermore, that importer/complainant was entitled to no compensation---Complaint was disposed of, in circumstances.

Yasin Tahir, Senior Advisor, Dealing Officer.

Imran Iqbal and Imran Rauf, CEO, Authorized Representatives.

Zaheer Abbas, Assistant Collector Departmental Representative.

FINDINGS

ABDUR RAUF CHAUDHRY, FEDERAL TAX OMBUDSMAN.---Messrs Al-Hamra Trading Company, Karachi, entered into a contract with Messrs Shou Sei Petrochemicals FZE P.O. Box 62183, Dubai, UAE, for import of 800 M.Ton yellow sulphur clay, in powder form @ US$ 100/MT. Under this contract, 600 M.Ton sulphur was imported in partial shipments of 120 MT each during 2009-10 and cleared for home consumption through electronically filed Goods Declarations (GDs) in the PaCCS Collectorate of Custom House, Karachi, which operated in a paperless environment through a fully computerized customs clearance system. Consignment-wise imports are mentioned in the table below:--

2.Whereas, the above mentioned first four consignments were cleared by the Customs authorities on the basis of declared description and value, the fifth consignment, imported vide GD No.IHC-1428552 dated 01.06.2010 was jointly examined by the Customs Examination Staff and representatives of Customs Research and Development Section (Intelligence Branch) of the PaCCS Collectorate, on the basis of information of some foul play by the importer.

3.On examination, it was observed that copies of packing list and invoice were not placed on the inner side of the container, as required under Customs Rule 389(a) notified vide S.R.O. 450(I)/2001 dated 18.06.2001, relevant part of which is reproduced below for ease of reference:--

"389. All import cargo entered into Customs area for clearance shall be accompanied with a copy of packing list and invoice in the following manner:

(a)Containerized FCL cargo. The documents shall be placed on the inner side of the door of container. In case of multiple containers in a consignment, each container shall have such documents pertaining to goods inside it."

4.The aforesaid Rule was put in place by the Government to curb tax evasion by unscrupulous importers through misdeclaration of description and value of goods. Its violation was made liable to penalty up to a maximum of Rs.25,000/- in terms of clause (1) of Section 156(1) of the Customs Act, 1969 (the Act). As per prevalent practice at Custom House, Karachi, as mutually accepted by the importers and the Customs, violation of this Rule was adjudicated by Deputy Collector incharge of Examination at Karachi International Terminal (KICT), on the basis of voluntary offer of the importer, communicated online, to pay penalty for violation of this Rule. Accordingly, contravention case No.CR-44520 dated 08.06.2010 was decided and a penalty of Rs.5,000/- was imposed vide Order-in-Original (O-in-O) No.26528/2010 dated 15.06.2010. As this decision was made with the consent of the importer, no appeal was filed against it.

5.Besides the above violation, the examination had also revealed that description of goods on the packing, imprinted by the manufacturer and exporter, a reputable Korean Company namely Messrs Miwon Commercial Company Ltd., was substantially different from the one declared by the importer in the GD. Instead of 'yellow sulphur clay' in powder form as declared by the importer in the GD, the goods were actually found to be branded sulphur powder 'Midas SP 325: 99.9% pure, packed in 25kg PP bags' used as vulcanizing agent in tyre and rubber industry, as per the website of the Korean exporters.

6.Perusal of import data revealed that many industries, in Pakistan, in tyre, rubber and shoe sectors, were regularly importing huge quantities of refined sulphur powder branded by the Korean exporters as 'Midas SP 325: 99.9% pure, in packing of 25 Kg PP bags'. Such imports were mostly being made directly by rubber industries of Pakistan from the same Korean suppliers, namely, Messrs Miwon Commercial Company, and were being declared by importers (other than Messrs Al-Hamra Trading Company) in the GDs at unit value of US$ 0.3060, in the relevant period of 90 days, before the date of import of the impugned consignment as defined in Rule 107(a) of Valuation Rules, notified vide S.R.O. 450(I)/2001 dated 18.06.2001. Thus, the description of Midas SP 325: 99.9% pure imported in this case was found misdeclared as yellow sulphur clay and the unit value of this branded and refined sulphur powder was also found under invoiced at US$ 0.1017/Kg, against the evidential value of the same goods imported from the same supplier in Korea. The total value of the impugned consignment @ US$ 0.3060/kg worked out to Rs.3,137,130/- involving evasion of Rs.577,602/- as the importer had declared the value as Rs.1,042,633.90 and paid Rs.288,517.66 as duty and taxes, on self-assessment basis, in terms of Section 79(1)(b) of the Act. The Principal Appraiser Group-1 prepared the Contravention Report for misdeclaration of commodity description and unit value of the impugned goods on the basis of evidentiary GDs pertaining to Messrs Mian Tyre and Rubber Company, Karachi and Messrs Servis Industries, Lahore. After vetting/clearance by the Law Section, the Contravention Report was converted into Show Cause Notice (SCN) No.CR-44742/2010, which was transmitted electronically to the importer on 16.06.2010, for providing him due opportunity of hearing.

7.During hearing on 25.06.2010, the clearing agent, Mr. Sharjeel Jamal represented the importer. As the AR could not plausibly justify the declared description and unit value, the impugned goods were confiscated, vide O-in-O No.27884/2010 dated 21.06.2010, issued by Deputy Collector (Adjudicating), in terms of the aforesaid provisions of the law. However, in exercise of his powers under Section 181 of the Act, the adjudication officer granted the importer an option to redeem the confiscated goods on payment of fine of 35%, in terms of Sr. No.1(c) of the Table to S.R.O. 499(I)/2009 dated 13.06.2009 and personal penalty of Rs.50,000/-, imposed for willful fiscal fraud. Instead of availing the option to redeem the confiscated goods, to avoid accumulation of port demurrage and container rent, the importer filed appeal before the Collector of Customs (Appeals), Karachi, on 26.06.2010, in terms of Section 193 of the Act.

8.A week after receipt of O-in-O dated 21.06.2010 and three days after filing appeal before Collector (Appeals) on 26.06.2010, the importer filed a request to Collector of Customs (PaCCS) for release of the confiscated goods against a cheque to save the goods from port demurrage and container rent. In terms of Section 81 of the Act, Customs authorities are empowered to allow provisional release only if it is not possible for them to finalize assessment of any goods for want of chemical test or further inquiry. As the Customs authorities had already conducted the examination, detected misdeclaration of description and value, received lab report dated 09.06.2010 and adjudicated the case on 21.06.2010, vide O-in-O No.27884/2010, they did not allow provisional release of the confiscated goods, as after confiscation, the property of goods, under reference, had vested in the Federal Government, in terms of Section 182 of the Act. Aggrieved of this order, the importer filed Complaint No.273/KHI/CUS(119)/1055/2010 dated 30.06.2010 (1055/2010) with the FTO requesting that:--

"The Deptt may be directed to:

(i)release the consignment without further delay and pay the wharfage, domurrage and other charges incurred on this consignment with reasonable compensation to the Complaint;

(ii)fix responsibility for stern disciplinary action against the officers, responsible for unlawful act, harassment, highhandedness and maladministration."

9.The complaint was not admissible for investigation in terms of Section 9(2)(a) of the FTO Ordinance, 2000 (the Ordinance), as the matter was subjudice before Collector (Appeals) since 26.06.2010. The importer was informed of the aforesaid bar on the FTO jurisdiction. During preliminary hearing, Mr. Imran Rauf, Chief Executive Officer (CEO) of the Company, pleaded withdrawal of the complaint with the request to file a fresh complaint in view of O-in-A No.4102/2010 already issued by Collector (Appeals) on 21.07.2010. His request was acceded to vide Findings dated 16.09.2010 and the aforesaid Complaint No.1055/2010 stood withdrawn.

10.The Collector of Customs (Appeals) decided the importer's appeal case on 21.07.2010, and issued the Order-in-Appeal (O-in-A) accepting the declared description and unit value as correct.

11.On receipt of this O-in-A, the Deputy Collector Incharge Group-1, (Mr. Muhammad Ashfaq), who was also the Deputy Collector (Adjudication) in this case, recommended contesting the said O-in-A by filing appeal before the Customs Appellate Tribunal, in terms of Section 194-A of the Act. This recommendation was not supported by the Additional Collector, Incharge Group-1 and the Additional Collector of Law Section and was turned down by the Collector of Customs, PaCCS. On receipt of the Collector's order on 27.07.2010, not to file appeal, the Deputy Collector issued necessary online instructions to release the goods in accordance with O-in-A. Thereafter, the importer filed a fresh Complaint No.315/KHI/CUS(135)/1195/2010 (1195/2010) dated 30.09.2010 with the FTO praying for compensation of Rs. two million for extra demurrage and container rent and suffering mental agony. Further prayed for taking disciplinary action against Dy. Collector Customs (Mr. M. Ashfaq).

12.After hearing the parties, my predecessor made following Recommendations vide para-24 of his Findings dated 12.11.2010;--

"FBR to-

(i)direct the adjudicating officer, Muhammad Ashfaq, to furnish explanation, within 15 days, as to why the loss caused to the Complainant may not be recovered from him in addition to appropriate compensation and cost under Section 22 of the Ordinance;

(ii)direct to arrange for refund of demurrage and container charges to the Complainant; and

(iii)report compliance within 21 days."

13.As the Dept'l view against the importer's complaint had not been accepted by the FTO, the FBR filed a Review Petition No.05/2011 dated 26.01.2011, in terms of Section 14(8) of the Ordinance. After hearing both sides, the Review Petition was also rejected by the FTO as bereft of merit. Feeling aggrieved by the FTO's decision in Complaint No.1195/2010 and rejection of FBR's Review Petition No.05/2011, the Revenue Division filed a Representation to the Hon'ble President of Pakistan, in terms of Section 32 of the Ordinance, with the following prayer:--

"In the light of submissions made above, it is respectfully prayed that the Findings/Recommendations dated 12.11.2010 in Complaint No.315/KHI/CUS(135)/1195/2010 and the observations/findings made in the impugned order dated 12.07.2011, passed by the Hon'ble FTO/Respondent No.1 in Review Application No.05/2011 may kindly be set aside in view of Section 9(2) of the Ordinance and Sections 179 and 216 of the Act."

After due consideration of the Revenue Division's prayer for setting aside the FTO Findings/Recommendations in importer's Complaint No.1195/2011 and the order in FBR's Review Petition No.05/2011, the Hon'ble President of Pakistan remanded the case to the FTO vide order dated.19.06.2013 with the following directions:

"Let the FTO apply independent mind in the light of evidence to be produced by Complainant as also the said tax employee and thereafter record findings and recommendations in accordance with law."

14.As the Hon'ble President's directive was with reference to the aforesaid prayer of the Revenue Division to set aside FTO's decisions in the original Complaint and FBR's Review Petition, the case was assigned to the Senior Advisor (Customs) in FTO HQs, Islamabad, to ensure application of independent mind to the case, instead of the Advisor at FTO Regional Office, Karachi, who had earlier investigated Complaint No.1195/2010 and assisted the FTO in deciding the FBR's Review Petition No.05/2011. As the importer and his lawyer were based at Karachi, the hearing was held at Karachi, for their convenience, as per the existing policy and practice of the FTO. The AR submitted detailed comments in writing which were reiterated during the hearing. He was of the view that remand by the Hon'ble President of Pakistan was limited to cross checking and confirming the extent of loss suffered by the importer. The DR, however, contended that the entire case was required to be examined afresh to issue fresh Findings and Recommendations as per law by applying independent mind, as the importer had clearly misled the investigation at the Complaint and Review stages. He contended that justice could not be done in this case unless the facts of the case were examined professionally and wholistically in the light of the Revenue Division's prayer reproduced under para-13 supra and submissions of the Customs Deptt and the FBR at the Complaint, Review and Representation stages.

15.In the light of the written and oral submissions of both the parties during earlier hearing of Complaint No.1195/2010, FBR's Review Petition No.05/2011, and the Revenue Division's Representation before the Hon'ble President of Pakistan, the following issues were framed:--

(i)whether a fresh look with an independent mind was required to be applied to the entire case to issue fresh Findings and Recommendations as contended by the DR or verifying only the compensation claim as contended by the AR?

(ii)whether actions taken by Deputy Collector of Customs (Mr. Muhammad Ashfaq) in handling this case smack of delay, delinquency, vendetta or hostility as alleged by the importer?

Issue No.(i) WHETHER A FRESH LOOK WITH AN INDEPENDENT MIND WAS REQUIRED TO BE APPLIED TO THE ENTIRE CASE TO ISSUE FRESH FINDINGS AND RECOMMENDATIONS AS CONTENDED BY DR OR VERIFYING ONLY THE COMPENSATION CLAIM AS CONTENDED BY AR?

16.The AR had contended, vide his letter dated 09.05.2014, that the Hon'ble President of Pakistan has referred back the Representation to FTO only for requiring the evidence from the Complainant to prove the damages as a fact. Therefore, it was requested to record findings in view of the order passed by the President of Pakistan, in letter and spirit. During hearing, the AR reiterated this preliminary objection. The DR controverted these averments and contended that this was a misleading contention so as to avoid proper examination of the facts of the whole case even at the remand stage. He invited attention to the prayer of the Revenue Division to the Hon'ble President (reproduced in para-13 supra) urging to set aside FTO's Findings/Recommendations in importer's Complaint No.1195/2010 and FTO's Order in FBR's Review Petition No.05/2011. 'The remand back of the matter, therefore, required application of mind to the whole case and not only the compensation matter,' the DR said. He also contended that the bona fide acts of the Deputy Collector (Adjudication) were duly protected under Sections 216 and 217 of the Act. He reiterated that correct conclusion could not be reached without careful examination of the entire facts of the case in terms of the Customs law and procedure.

17.It has been observed that the FBR did not accept FTO Findings/Recommendations dated 12.11.2010, in Complaint No.1195/2010 and had filed Review Petition No.05/2011 before the FTO in terms of Section 14(8) of the Ordinance. The FBR's Review Petition also met the same fate as the Dept'l contentions had met in the FTO Findings/Recommendations in the Complaint. Feeling aggrieved by the aforesaid Findings/Recommendations and Order-in-Review, the Revenue Division exercised its right to file Representation, in terms of Section 32 of the Ordinance. After due consideration of the contentions of Revenue Division in the Representation and the comments submitted by the importer through his legal advisor, Hon'ble President remanded the case back to the FTO for application of independent mind to issue fresh Findings and Recommendations, in the light of evidence to be produced by the parties. The text of the Hon'ble President's direction does not appear to limit the remand only to checking the extent of loss to the Complainant but to apply independent mind to the whole case to reach correct conclusion. If the facts of the case are carefully considered, it would be plainly evident that even the question of compensation cannot be decided justly and fairly without careful examination of the facts of the case afresh. That is why Hon'ble President directed issuance of Findings and Recommendations by the FTO after examining the evidence produced by the parties. Hence, the contention of the AR that only the extent of compensation requires application of independent mind and not the entire facts of the case, is not plausible and, therefore, not acceptable.

Issue No.(ii) WHETHER ACTIONS TAKEN BY DEPUTY COLLECTOR OF CUSTOMS (MR. MUHAMMAD ASHFAQ) IN HANDLING THIS CASE SMACK OF DELAY, DELINQUENCY, VENDETTA OR HOSTILITY AS ALLEGED BY THE IMPORTER?

18.In his capacity as Deputy Collector of Customs (PaCCS) incharge of Group-1, dealing with assessment of goods classified under Pakistan Customs Tariff Chapters 1 to 27, and Deputy Collector (Adjudication) for the PaCCS Collectorate as a whole, Mr. Muhammad Ashfaq had handled the following matters in this case:--

(i)issuing SCN in terms of Section 180 of the Act on the basis of Contravention Report prepared by Principal Appraiser Group-1 and vetted by Law Section of the Collectorate;

(ii)adjudicating SCN in terms of Section 156(1) of the Act by providing due opportunity of hearing to the parties and issuing O-in-O No.27884/2010 dated 21.06.2010;

(iii)proposing filing of appeal against O-in-A as it was evidently defective and unlawful and issued by Collector of Customs (Appeals) without completing due process;

(iv)compliance of O-in-A on rejection of his proposal by Collector of Customs PaCCS to file appeal against O-in-A; and

(v)issuing delay and detention certificate.

19.The Deputy Collector had electronically received Contravention Report No.CR-44742/2010 on 14.06.2010, prepared by Principal Appraiser Group-1 and vetted by Law Section of the PaCCS Collectorate, as per procedure. Based on this Contravention Report, he issued SCN on 16.06.2010 which was communicated electronically to the importer to enable him to prepare his reply and attend the hearing scheduled for 21.06.2010. The hearing was attended by clearing agent, Mr. Sharjeel Jamal, as an Authorized Representative (AR) and submitted a written reply to the SCN. After hearing the AR and the DR and examining the case record, O-in-O No.27884/2010 was passed and transmitted electronically to the importer the same day i.e. 21.06.2010. Therefore, there was no delay, or mala fides on the part of Deputy Collector (Adjudication).

20.The O-in-O is a speaking order, based on reliable evidence, as the misdeclaration of description and quality of goods was detected on joint examination by the staff of Customs Examination and Research and Development Section; invoice and packing list were not found placed in the container as required vide Rule-389 of the Customs Rules, 2001, notified vide S.R.O.450(I)/2001 dated 18.06.2001 and the value was found grossly under invoiced (US$ 0.1017/kg) instead of US$ 0.3060 prevailing at the relevant period. As the AR could not justify the misdeclaration of description and value, the goods were ordered confiscation, as per law, in terms of relevant clauses of Section 156(1) of the Act. However, the adjudicating officer allowed redemption of the confiscated goods against fine as prescribed by the Government, vide serial No.1(c) and (d) of the Table to S.R.O. 499(I)/2009 dated 13.06.2009 and a personal penalty of Rs. 50,000/- imposed on the importer, on account of his deliberate attempt at fiscal fraud. Thus, the adjudicating officer had acted promptly and decided the case expeditiously.

21.Instead of availing option to redeem the goods on payment of leviable duties, taxes and fine/penalty, as allowed by the adjudicating officer on 21.06.2010, the importer filed appeal against the O-in-O on 26-06-2010 which was decided on 21.07.2010. It is, therefore, evident that the delay in clearance was on the part of the importer himself - firstly by indulging in misdeclaration and manipulation of import documents which resulted in detailed examination of goods and adjudication for punishment of violations of law and procedure for evasion of duty and taxes, and secondly, by failing to avail the opportunity of redemption provided to him by the adjudicating officer.

22.On receipt of the O-in-A, issued by Collector of Customs (Appeals), Mr. Muhammad Ashfaq, the Deputy Collector (Incharge Group-1) was under obligation to propose filing of appeal to the Customs Appellate Tribunal, in terms of Section 194A read with the option given in the aforesaid O-in-A. While discharging this lawful obligation by recommending use of Dept'l option to contest Collector (Appeals) decision before Customs Appellate Tribunal, the Deputy Collector also proposed release of the goods, in terms of Public Notice No.9/2007 which allowed release of such goods without recovering the amounts of penalty and fine. When subsequently, the Collector of Customs (PaCCS) rejected his proposal on 27.07.2010 to contest the O-in-A, the Deputy Collector issued instructions electronically on the same day to release the goods in compliance of the O-in-A. Therefore, the Deputy Collector's proposal made in discharge of his obligation under the law and procedure cannot be treated as mala fides.

23.Apart from the allegations discussed above, other contentions made by the importer are discussed below:

(i)Non-Consideration of Test Report.---As regards non-consideration of the test report sent by Custom House Laboratory, the fact of the matter is that the test report was received on 09.06.2010 and not on 25.06.2010 as mistakenly mentioned in para-18 of FTO Findings dated 12.11.2010 and para-09 of Order-in-Review. The latter date was in fact the date of paper transcript of lab report issued on 25.06.2010. The record of PaCCS Collectorate showed electronic receipt of the test report on 09.06.2010. It was not discussed in the O-in-O, as it had no adverse bearing on the evidential value. It was also meaningless as far as description was concerned as the Examination Staff had not asked an appropriate question to be determined by lab test as to whether the commodity under reference was crude sulphur clay in powder form of PCT Heading 2503 or sublimed or precipitated or colloidal sulphur of PCT Heading 2802. If the adjudication officer had raised this issue at the SCN or adjudication stages, it would have delayed the issuance of O-in-O without any material bearing on the unit value of goods which was the focus of adjudication.

(ii)Instigation by Competitors.---None of the Deputy Collector's actions, in this case, was triggered by any competitors of the importer as the basic information of foul play was not received by him. Instead, it was received by the R&D Section and thus joint examination was also conducted by the staff of that Section along with the Examination Staff, under a different Deputy Collector. As a matter of fact the competitors were large scale enterprises mostly tyre, rubber and shoe industries, which were regularly importing this commodity in thousands of M. Tons for in house use and not for trading. The importer's allegation that adjudication officer was instigated by the competitors, is obviously ill-founded and frivolous.

(iii)Delay/Detention Certificate.---The Complainant contended that the Deputy Collector (Mr. Muhammad Ashfaq) admitted his fault/maladministration by issuing delay/detention certificate (DDC) to the Complainant. This contention is not correct as DDC was issued after it was decided by the Collector not to file appeal in the Appellant Tribunal. Therefore, issuance of DDC cannot be treated as an evidence of admission of any fault or maladministration on the part of PaCCS Collectorate or the Deputy Collector (Adjudication).

(iv)Non-Showing Evidence during Adjudication.---The AR also complained that the adjudicating officer was requested to show the evidence of higher value but he refused to show the same. This contention is not maintainable as the importer had mentioned in his reply to the SCN that 'Sulphur being imported by Tyre Industries has additives included and it is also oil coated. As such our sulphur is not comparable to sulphur being imported by the Tyre Industries:' If the importer and his clearing agent (the AR) were unaware of any evidence of value, how did they refer to sulphur imported by tyre industries in their reply. It is, therefore, evidence pure and simple, that the importer and his clearing agent knew that tyre, tube and shoe industries were regularly importing this item and declaring much higher unit values. In the paperless environment operated by PaCCS Collectorate, evidential data of description and value of Midas SP 325: 99.9% pure was readily available online. Had the clearing agent asked for its showing, the Deputy Collector would have shown it to them. Even a hard copy could be obtained just for asking as was made available by the Deptt. during hearing of FBR's Review Petition. As neither the importer nor his clearing agent had asked for it, therefore, they could not complain of non-showing of evidence by the adjudication officer. Nor was clearing agent, Mr. Sharjeel Jamal new to the paperless environment of PaCCS Collectorate to say, after the event, that evidence of higher value was not shown to him. If the importer or the clearing agent needed to see the evidence online or in terms of hard copies, they could have got it for asking. As it was not done, they cannot justify their contention at this stage which is clearly an afterthought to mislead the investigation.

(v)Violation of Importers' Constitutional and other Rights.---As the acts done by Deputy Collector (Mr. Muhammad Ashfaq) are bona fide and lawful, these are duly protected under Sections 216 and 217 of the Act. Besides, no violation of importers' constitutional and other rights is involved in handling of this case by the aforesaid Deputy Collector. As his actions do not involve any neglect or willfulness, therefore, no compensation for any loss can be lawfully claimed in this case.

24.Section 216 of the Customs Act, 1969, provides that no one is entitled to claim compensation for loss or injury except on proof of neglect or willful act. Similarly, Section 217 of the Act, lays down the common law rule that where the government or their servants do or intend to do anything in good faith in pursuance of the provisions of any law under which they are authorized to act, shall not be liable civilly or criminally.

25.In view of the legal position and facts explained above, nothing in the actions of Deputy Collector of Customs (Adjudication) smacks of mala fides, vendetta, hostility or violation of importers' rights. His acts were bona fide and lawful which are duly protected under Sections 216 and 217 of the Act. The FTO Ordinance too protects bona fide acts of tax employees. It also provides for award of reasonable compensation to the tax employees under Section 14(4) read with Section 22(2) ibid against frivolous and vexatious complaints filed by unscrupulous persons to abuse the Ombudsman mechanism.

26.In such view of the facts and legal position, no case of maladministration is made out against the Deputy Collector who, being quasi-judicial officer, acted in accordance with law. Hence there is no question of any compensation to the complainant. The complaint, being devoid of any merit, is accordingly closed and case file consigned to record.

27.Before disposing of the case, it is, however, observed that Collector Customs should have consulted the legal wing in the FBR about filing of appeal or otherwise against the O-in-A dated 21.07.2010, passed by the Collector of Customs (Appeal).

28.Earlier Findings/Recommendations in Complaint No.1195/2010 and FTO's Order-in-Review in FBR's Review Petition No. 5/2011 stand substituted by aforesaid Findings.

KMZ/102/FTOOrder accordingly.