2003 PLP 2030 (PTD)

(7) The registered vehicles of one bonded carrier shall not be allowed to be operated by an other Bonded Carrier for the transshipment of Cargo to upcountry Dry Ports. (8) All the Bonded Carriers permits be required to obtain and possess Customs Clearing and forwarding licence. "

5. Necessary circular (s) were issued requiring all the Customs Private Bonded Carriers to apply for renewal of authorisation/liences in accordance with the requirements of Rules 328 (Supra).

6. Feeling aggrieved of the Revision of the Customs Rules through S.R.O. 375(I)/2002 and the issuance of the circulars requiring the petitioners to apply for renewal of the licences afresh in accordance with the requirement of Rule 328 and threatened action of prohibiting the petitioners to carry on their trade without such compliance, the petitioners and other similarly placed bonded carriers filed Writ Petition No. 16806 of 2002 wherein, the aforementioned sets of respondents were questioned. The said writ petition was disposed of vide order; dated 24-9-2002 passed by this Court at the Principal Seat in the following terms:-- "The stand taken by the learned counsel for Customs Department is reasonable. Let petitioners move the Chairman, Central Board of Revenue, Islamabad by or before 3-10-2002 who shall entertain their application and decide it within 30 days of its presentation and till he decides it the circular, dated 7-9-2002 referred to above shall not be given effect to. Needless to observe if petitioners fail to file the application before the Chairman Board of Revenue, Islamabad in terms of this Court's order the law shall take its own course. Disposed of."

7. The matter was taken up by the Chairman Central Board of Revenue Islamabad in terms of the above said order of this Court. The petitioner challenged the vines of the promulgation of Transhipment Rules 326 to 341 brought about through S.R.O. 375(I)/2002 on the ground that the petitioners were granted licence under the Prevalent Customs House Agents Licencing Rules 1971 and Customs Transhipment of Goods to Customs Port Rules 1973 and that the terms of the licence could not be altered retrospectively in an arbitrary manner. It was contended that the legal requirements contemplated by Rule 328 were even otherwise harsh and oppressive and were not justified on any score. The controversy as crystallized before the learned Chairman C.B.R. was as under:-- (i) That condition vide rule 328(1) of having minimum registered vehicles is harsh, and new rules did not give any provision for temporary hiring of additional vehicles for need/trip which was allowed in the past. (ii) That vide rule 328(6) the amount of security has been increased from Rs.1.0 million to Rs.5.0. million which is harsh. (iii) That Bonded carriers cannot verify actual description, quantity, quality, weight etc, required vide rule 329(1) and in case of any difference found, are liable to be prosecuted under section 32 of Customs Act, 1969. (iv) The time limit should have been up to 1-10-2002 but only 14-9-2002 was allowed.

8. After hearing the petitioners and the departmental representatives, the learned Chairman C.B.R. found that the provision of Rule 328(1) requiring the bonded carrier to possess a fleet of a minimum of twenty five registered vehicles from the previous prevailing fifteen was justified and feasible under the prevailing circumstances. This conclusion was drawn, keeping in view the logistics of the optimum performance expected of the Bonded Carriers both in terms of time expense and expediency of service.

9. The learned Chairman C.B.R. appreciated the rationale of the increase in the security amount from the previously prevailing rupees one million to a sum of rupees five million was envisaged in Rule 328(b). In fact the old practice was to enact an amount of rupees five million as security. This was reduced firstly to rupees 2.5 million and then to rupees one million. The Bonded Carriers were responsible for speedy carriage of valuable Bonded cargo involving huge Government Revenue and the reduction in the security amount did not yield positive results. In fact that had resulted in granting licence to persons/firm which were not found to possess sufficient capacity and capability to cope with magnitude of the trade and business. The learned Chairman C.B.R. did not find the said provision of the Transhipment Rules to be violative of, law or equity.

10. The learned Chairman C.B.R., however, found the provisions of Rule 329(1) to be in excess of lawful authority. Rules 329 read as under:--

329. Responsibilities of the carriers.

(1) Prior to submission of application (Appendix-1) for transhipment the carrier shall satisfy himself that the actual description quantity, quality and weight of the goods under transhipment are as per declaration in the IGM of the vessel. In case any misdeclaration or substitution is found at subsequent stage, the carrier shall be held responsible under section 32 and 121 of the Customs Act, 1969 (IV of 1969).

11. He was of the view that the petitioners as bonded carriers do not have access to the goods which arrive sealed which are further checked and sealed by the authorized Security Company as per procedure. It was thus beyond the capacity of the Bonded Carriers to verify the actual description quantity, quality and weight of the goods under the transhipment. In this view of the matter, the responsibility placed upon carrier under sections 32 and 121 of the Customs Act, 1969 was not found to be appropriate.

12. As regards, the cut-off date for making application in accordance with law, it was admitted by the departmental representative that although the date (s) for applying for grant of licences have been extended from time to time yet there was no restriction on filing fresh applications which would be processed as per law.

13. The learned counsel for the petitioners as well as the learned counsel for the respondents have been heard at length and record perused. They are in agreement that as the entire record is available for a final disposal of the writ petition on merits, the same. may be heard and decided as a regular matter. It is proposed to proceed and decide it as such.

14. Transhipment as described under the Custom Transhipment of Goods to Customs Parts Rules, 1973 means the transfer or transhipment of goods without payment of Customs duties at a Customs port from a vessal to carrier for carriage to another Customs port. "Transhipment Goods" means goods brought into Pakistan which are to be transhiped from one. Customs port to another. "Carrier" means the Pakistan Railway or such other carrier as the Central Board of Revenue may approve from time to time.

15. Transhipment was relatively, new experiment which commenced with the establishment of up-country Dry Ports. Authorisation/licences were issued provisionally and variations in the required fleet size or registered vehicles and security deposits were adopted as temporary measures. It was commensurate with this policy that even the definition of transhipment was modified slightly in section 326(d) of the Revised Transhipment Rules. The carrier according to this definition was obliged to transfer the goods from Karachi Port Trust for carriage to another Customs Ports or stations. It was to ensure the speedy and inexpensive transhipment that the requirement of having a fleet to maximum 25 registered vehicles which were road worthy were made in Rule 328(i). This rule is neither harsh or oppressive nor is violative of any provisions of the Customs Act 19459. As earlier observed this requirement in progressive in nature and reflects the sensitive nature and volume or transhipment which is carried out by the Bonded Carriers.

16. The learned counsel for the petitioner has not been able to point out any rule of law which prohibits the Government from placing a requirement upon the prospective carrier which in the opinion of the Government could serve the purpose and object of the Customs Act and the Rules in an appropriate manner. No licensee has any vested right in the terms and conditions of a licence particularly when the said terms are governed through statutory intent.

17. The submission, made by the learned counsel for the petitioner that by grant of a licence upon the previous term and conditions regarding the fleet of vehicles and the amount of security, some right had come to vest in the licensers, is devoid of force. The said provision of Rule 328(1) and 328(6) is neither discriminatory nor harsh or oppressive. It is also not controverted by the petitioner that a security of rupees five million was prevailing even in the past which had been reduced at two different times and was lastly fixed at rupees one million. That the respondents have decided to revert to the earlier practice of requiring a security deposit of rupees 7 million, is neither unjust nor capricious in the circumstances of the case.

18. The further contention made by the learned counsel for the petitioner that earlier S.R.O. 1332(1) 73 has not been specifically repealed by S.R.O. 375(1) 2002 and thus the new conditions for qualifying shall not apply to the petitioners who had been granted licence under the earlier notification is not legally sustainable. In fact Chapter XIV Rules 326 to 341 have been added to S.R.O. 450(I)/2001 and form consolidated Customs Rules on the subject.

19. The upshot of the above discussion is that the petitioners who were allowed to work as Bonded Carriers only provisionally, they are under a legal obligation to apply afresh for licence under the new Rules as provided in Chapter XIV Rules 326 to 341 and only those Carriers shall be entitled to the grant of liences who fulfil all the conditions and requirements of the consolidated Rules.

20. The petitioner has not been able to make out any case for interference with the impugned order of the learned Chairman, Central Board of Revenue. The writ petition is without merit and is hereby dismissed. S.A.K./E-35/L Petition dismissed.