2005 PLP 929 (PTD)

(xiii) Eventually, on insistence of the importer to implement the Appellate Tribunal s order, dated 16-12-2003, Assistant Collector directed him to furnish an undertaking for permission to file fresh bill of entry and lodge a report with the Police. As instructed the action was taken but he was not allowed to file a new bill of entry and clearance of goods was not allowed. (xiv) Customs were under legal obligation to implement the orders of the High Court and of the Appellate Tribunal and their refusal amounted to gross contempt of the aforesaid lawful orders.

3. The bill of entry was filed on 15-11-2002, the consignment was lying at the port and had gone under heavy demurrage and other charges and the food items had been damaged. It was requested that action be taken against the Customs for non-compliance of the High Court s and Appellate Tribunal s order and direction be given to release the consignment and issue delay and detention certification for waiver of demurrage and other port charges and the Pakistan International Container Terminal Limited be directed to accept the certificate and waive port charges.

4. The Deputy Collector of Customs AIB replied to the complaint and raised preliminary objections that (i) the case was sub judice before the High Court and the complaint was not maintainable under section 9(2) (a) and (b) of the Ordinance No. XXXV of 2000, (ii) it related to assessment of duty and taxes. He further stated that:-- (i) When the bill of entry was filed on 15-11-2002 for miscellaneous items at the declared value of $18,030 a drive was launched against the importers of miscellaneous goods, which were being clandestinely cleared by the importers. (ii) The importer was asked on 9-12-2002 to present the bill of entry but he did not turn up. (iii) Due to his long absence the goods were examined on 19-4-2003 by the designated committee. (iv) High Court passed order, dated 14-1-2003 directing the Customs Department to process the bill of entry. Importer was asked to submit bill of entry vide letters, dated 30-12-2002 and 17-1-2003. (v) He requested to file a fresh set of bill of entry vide letter, dated 20-1-2003 which was not allowed. (vi) When finally fresh bill of entry was submitted, it confirmed that the first bill of entry, whose particular were available on the computer, was fraudulent and untrue as the fresh set was filed with a new invoice and declaration showing 13 items instead of 10 and value $107294/43 instead of earlier declared value $18,030. (vii)Contravention case of misdeclaration and tax fraud was sent to the Adjudicating Authority who decided it vide order, dated 15-8-2003 imposing penalty of Rs.5,00,000 and fine of Rs.25,00,000. (viii) On a petition, the High Court allowed release of goods on payment of fine, penalty and duty and taxes but importer did not turn up. (ix) Request to file a new bill of entry was allowed and the consignment was released to them on 30-1-2004. (x) Department s appeal against the Tribunal s order was sub judice before the High Court, the complaint was not maintainable and it may be dismissed.

5. The Advocate representing the Complainant stated during the hearing that the order passed by the Collector (Adjudication) was set aside by the Appellate Tribunal vide judgment, dated 16-12-2003. This decision was not implemented till 4-3-2003 when the goods were released on payment of duty and taxes and undertaking for fine and penalty on the direction of the High Court and after a complaint had been filed in this office. It was requested that for the interventing period when the Complainant suffered the demurrage and storage charges and loss on account of wastage, damages and compensation be granted in the interest of justice.

6. The Deputy Collector of Customs stated that the Tribunal had issued the order on the basis of a decision of High Court against which the Department has filed an appeal before the Supreme Court, the order of the High Court was suspended by the Supreme Court and the proceedings were in process. Since the order relied upon by the Tribunal was already sub judice before the Supreme Court, the jurisdiction of this office was barred.

7. The facts of the case and the submissions made by both the sides have been examined. The Respondents have submitted a letter, dated 21-7-2004 from Muhammad Nadeem Qureshi, Advocate to Deputy Collector AIB intimating that the High Court Appeal was filed against the impugned order, dated 16-12-2003 which is pending for katcha peshi. Due to the vacation that is not been rise (sic), after the vacation the case has to be listed for katcha peshi accordingly . The Advocate s letter does not signify that the appeal against the order of the Appellate Tribunal has been admitted for hearing and the Respondent has not substantiated the contention that the matter was sub judice before the High Court. The Complainant is not a party to the case wherein the Department s appeal was pending in the Supreme Court. The plea that the matter pertaining to the present complaint is sub judice is not acceptable.

8. This office is empowered to investigate into the cases of maladministration involving, inter alia, the manner in which the assessment and clearance of goods under the orders of the appropriate authorities and the superior Courts orders are implemented. It is within the jurisdiction of this office to investigate into the acts contrary to law, the decisions manifestly perverse, arbitrary, unjust, oppressive, including cases of administrative excesses, neglect, inattention, delay, incompetence, inefficiency and inaptitude of tax officials in the discharge of duties.

9. The circumstances of the complaint clearly show that:-- (i) Action was not taken for clearance of goods for examination on the pretext that a drive had been launched to stop clandestine removal of misdeclared goods. (ii) The bill of entry was blocked without valid reasons and immediate action was not taken to re-examine the goods. (iii) At every step the Complainant had to file petition before the High Court soliciting direction to the customs for assessment and release of goods. (iv) The goods were not released after adjudication despite High Court s order. (v) When appeal was allowed by the Tribunal, the attorney had to approach the High Court to issue direction to the Customs and, even after the High Court s order, the goods were released 3 months after this complaint was filed in this office. This office has taken cognizance of the complaint in view of the manifest instances of maladministration as mentioned above. The objections regarding jurisdiction of this office have no substance.

10. The Customs have blamed the importer for the delay although the circumstances clearly establish that at every step the Customs were bent upon not to release the goods and it is established that they did not comply with the orders of the Collector (Adjudication), the Appellate Tribunal and the High Court. The Customs blocked clearance at every step, the bill of entry was filed on 15-11-2002 and the goods were eventually released on 4-3-2004. There was no justification for such inordinate delay in taking a decision and finalizing action in accordance with law. Extraordinary delay has taken place entirely on account of the failure of the Customs authorities to act with equity, fairplay and efficiency in performance of their duties. Gross maladministration against the customs has been established. In view of the order of the Appellate Tribunal against which no stay order has been produced by the Respondents, the delay and detention certificate should be issued by the Customs and remission of container and detention charges should be allowed.

11. It is recommended that C.B.R (i) direct the Collector of Customs to issue a delay and detention certificate for waiver of the KPT charges and take necessary action for remission of container charges within fifteen days; and (ii) compliance be reported to this office within thirty days. C.M.A./338/FTO Order accordingly.