Judgment on S.R.O 499(I)/2009 dated 13-06-2006

PLJ 2013 Tax Cases (Kar.) 85 (DB)

Present: Aqeel Ahmed Abbasi and Farooq Ali Channa, JJ

Messrs GLOBAL INTERNATIONAL through Managing Partner--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Commerce, Islamabad 4 others--Respondents

Const. P. No. D-4081 of 2011, decided on 20.9.2012.

Constitution of Pakistan, 1973--

----Art. 199--Customs Act (IV of 1969), Ss. 15 & 32--Constitutional petition--Mis-declaration of goods, offence of--Fixation of fine in lieu of confiscation of goods by invoking provisions of paragraph-1, clauses (a) to (g) of table provided in S.R.O. 499(I)/2009, dated 13-6-2006--Pendency of appeal against order-in-original before Appellate Authority--Plea of petitioner was that S. 32 of Customs Act, 1969 had been excluded from the purview of S. 15 of the same Act, therefore revenue authorities right be directed not to invoke provisions of Paragraph-I, Clauses (a) to (g) of table provided in S.R.O. 499(I)/ 2009 dated 13-6-2009, which otherwise had become redundant--Plea of revenue authorities that petitioner had neither sought such relief in constitutional petition nor raised same before adjudicating authority, therefore, he could raise the same before Appellate Authority before whom his appeal was still pending--Validity--High Court with consent of parties disposed of constitutional petition by directing petitioner to raise such ground before Appellate Authority, who after hearing parties and considering same would decide appeal in accordance with law.          [P. ] A

Mian Abdul Ghaffar, Advocate for Petitioner.

Mr. Javed Faruqi, DAG for Respondents.

Mr. Ilyas Ehsan, Appraising Officer, Customs for State.

Date of hearing: 20.9.2012.

Order

Through instant, petition the petitioner has sought following reliefs:--

(a)        That fixation of quantum of fine in lieu of confiscation by Respondent No. 2 for the goods not covered under 2nd Proviso to Section 181 of the Act vide S.R.O. 499(I)/2009 dated 13-6-2009 is void, illegal, without jurisdiction and of no legal effect;

(b)        That S.R.O. 499(I)/2009 dated 13-6-2009 so far as it relates to the fixation of quantum of fine in lieu of confiscation for the offences of mis-declaration etc. in respect of goods not covered under 2nd Proviso to Section 181 is void, illegal, and liable to be struck down being violative of the statutory provisions;

(c)        That re-examination of the goods, drawing fresh representative samples, enhancement of value on the back of the petitioner and declaring the Polypropylene recycled as virgin/prime quality by Respondents Nos.3 and 5 and demanding duties and taxes, treating the goods as such are unjustified, void and illegal;

(d)        That denial or as the case may be in-action on the part of Respondents Nos.3 and 4 of releasing the goods provisionally in terms of Section 181 of the Act read with Rule 125(2) of the Customs Rules, 2001 pending decision of the appeal are as the case may be moving the same to the State-warehouse in order to avoid further accumulation of wharfage, demurrage, storage and detention charges are void, illegal, by unjust and of no legal effect;

It is further prayed that while granting aforesaid declaration, S.R.O. 499(I)/2009 dated 13-6-2009 so far as it relates to the fixation of fine in respect of goods not covered under 2nd Proviso to Section 181 of the Act be struck down and the goods of the petitioner be directed to be released provisionally on furnishing security as deemed appropriate by this hon'ble Court covering additional amount of duty/taxes, fine and penalty in order to avoid further accumulation of demurrage, wharfage, storage and detention charges besides deterioration of the goods.

It is further prayed that Respondents Nos.3 and 5 may also be directed to issue delay and detention slip for waiver of wharfage, demurrage, storage and detention charges as the delay in clearance of the consignment has not been caused due the fault of the petitioner.

2.  Notices were issued, pursuant to which the learned D.A.G. has filed comments on behalf of Respondent No. 1. Learned counsel for the petitioner has mainly argued that in terms of provisions of second Proviso to Section 181 of the Customs Act, 1969, the Federal Board of Revenue is not authorized to fix the amount of penalty in lieu of confiscation, whereas, per learned counsel, such authority is vested in the Assessing Officer. It has been further contended that Section 32 of the Customs Act is not included in Section 15 which was included prior to amendment introduced in Section 15-of the Customs Act, therefore, the Federal Board of Revenue after the amendment in Law cannot fix the amount of penalty in lieu of confiscation. Accordingly, per learned counsel, the S.R.O. 499(I)/2009 dated 13-6-2009 issued by the FBR is without jurisdiction and of no legal effect, and the same may be declared as ultra-vires.

3.  However, when the learned counsel for the petitioner was confronted that S.R.O. 499(I)/2009 dated 13-6-2009 was issued prior to amendment introduced in Section 15 of the Customs Act through Finance Act, 2011 when the FBR was duly authorized to fix the amount of penalty in lieu of confiscation, the learned counsel for the petitioner could not controvert such legal position and submitted that he would not press  the  instant  petition  as prayed, however, submitted that alternate relief may be granted to the petitioner by holding that after the amendment having been introduced by Finance Act, 2011 in Section 15 of the Customs Act, whereby the Section 32 has been excluded from the purview of Section 15, the respondents may be directed not to invoke the provisions of Para-I Clauses (a) to (g) of such table as provided in S.R.O. 499(I)/2009 dated 13-6-2009 which otherwise has become redundant after amendment made through Finance Act, 2011.

4.  To this submission, learned D.A.-G. submitted that since no such relief has been sought by the petitioner in the instant petition nor such ground was raised before the respondent when order-in-original was passed, whereas, admittedly, an appeal has also been filed by the petitioner against the order-in-original, which is pending disposal before the Collector of Customs (Appeals), therefore, per learned counsel it will be appropriate if the petitioner may be directed to approach the learned Collector of Customs (Appeals) and raise such legal objection which may be heard and decided by the Collector of Customs (Appeals) in accordance with law. Learned counsel for the petitioner does not oppose such proposal made by the learned DAG and submits that instant petition may be disposed off in the above terms.

5.  Accordingly, by consent of the parties, instant petition is dismissed as not pressed to the extent as discussed hereinabove, however, with the directions to the petitioner to approach the Collector of Customs (Appeals) within 15 days from the receipt of the certified copy of this order, where he may raise all such legal grounds including the one raised hereinabove. The Collector of Customs (Appeals) is directed to entertain such legal grounds and to decide the appeal by recording his finding on all the grounds raised by the petitioner including the one regarding effect and application of the provision of Para-I of the Table as provided in S.R.O. 499(I)/2009 dated 13-6-2009 and shall pass an order in accordance with Law. It is expected that the appeal may be disposed off, preferably within a period of 15 days from the date when the petitioner may approach the Collector (Appeals), after providing him an opportunity of being heard.

The petition is disposed of in the above terms along with listed application.

(R.A.)  Petition disposed of