2004 PLP 2278 (PTD)

8. Mr. Raja Muhammad Iqbal has also referred to the import and export policy and argued that the export of the liquor from Pakistan is banned under the Export Policy. That the present case would attract the provisions of the said Policy and calls for prosecution under the provisions of Customs Act. In support of his elaborate arguments, he has placed reliance on the following cases:‑‑ (1) Tahir A Khan v. Central Board of Revenue (2003 PTD 1155), (2) S.M. Shafi Zaidi v. Hassan Ali Khan (2002 SCMR 338), (3) Dewan Scrap (Pvt.) Ltd. v. Customs, Central Excise : and Sales Tax Appellate Tribunal (2003 PTD 2127), (4) Dream World Limited v. Cotecna Inspection S.A. (200 PTD 2809), (5) Collector of Customs (Exports) v Chemitex Industries (Pvt.) Ltd. (2002 MLD. 836), (6) Aluminum Processing Industries International (Pvt.) Ltd. v. Federation of Pakistan (2003 PTD 1411). (7) Muhammad Idris v. Collector of Customs, Karachi (PLD 1971 Karachi 911), (8) Khacaija Karim v. Zia‑ur‑Rahman Khanzada (PLD 1999 Karachi 223), (9) Amin Textile Mills (Pvt.) v. Commissioner of Income Tax (2000 SCIVIR 201), (10) Iftikhar Hussain Khan of Mantdot v. Ghulam Nabi Corporation Ltd. (PLD 1971 SC 550), (11) Khalid Mehmood v. Collector of Customs (1999 SCMR 1881), (12) Walayat Begum v. Collector of Customs (2003 PTD 1144), (13) Noor Elahi v. Member, Board of Revenue (2003 SCMR 1045), (14) Income Tax Officer v. Chappal Builders 1993 SCMR 1108; (15) Adamjee Insurance Company Ltd. v. Pakistan (1993 SCMR 1798), (16) Commissioner of Income Tax v. Hamdard Dawakhana (Waqf) (PLD 1992 SC 847), (17) Adamjee Insurance Company Ltd. v. Pakistan (1993 SCMR 1798), (18) Punjab Small Industries Corporation v. Ahmad Akhtar Cheema (2002 SCMR 549), (19) Finest Corporation v. Collector of Customs (PLD 1990 Karachi 338), (20) Sikandar and Brothers v. Government of Pakistan (PLD 1986 Karachi 373), (21) Nisar Art Press (Pvt.) Ltd. v. Chief Collector of Customs (1997 MLD 1859), (22) Sandalbar Enterprises (Pvt.) Ltd, v. Central Board of Revenue (PLD 1997 SC 334), (23) Iram Ghee Mills (Pvt.) Ltd. v. Customs, Central Excise and Sales Tax (2004 PTD 559), (24) Baba Khan v. Collector of Customs (2000 SCMR 678) and (25) Director, Investigation and Intelligence, Customs v. Muhammad Nawaz (2003 PTD 1392).

9. Mr. Sohail Muzaffar, learned counsel for the plaintiff has opposed the applications under Order VII Rule 11, C.P.C. and under Order VIII, Rule 8, C.P.C. He mainly stressed that under the present circumstances when a wrong shipment took place, the only logical course of event would be a request by the Embassy of D.P.R. Korea and admittedly when it is a wrong shipment, the owning of the goods wrongly shipped does not arise. The logical course is the request made for reshipment.

10. While the hearing of the application was in progress, the replies from the D.P.R Korea were obtained by the Defendants. However, as the matter was being prolonged plaintiff also followed up the matter to the Ministry of .Foreign Affairs. The replies to the queries by the Karachi office of the Embassy received through the Ministry of Foreign Affairs has also been placed on record. Mr. Sohail Muzaffar in response to queries made in pursuance to the order, dated 22‑9‑2003.

11. Addressing his arguments on the question of maintainability of the suit. Mr. Sohail Muzzafar has opposed the application under Order VII, Rule 11, C.P.C. on the ground that the question of the ouster of jurisdiction is not unrestricted to the extent specified under the provisions of section 217 of the Customs Act. He has also emphasized on the question of assumption of jurisdiction and resort to proceedings as a precondition for ouster of jurisdiction of the civil Court which according to him is attracted only when a party has chosen that chain of hierarchy.

12. Mr. Sohail Muzaffar also opposed the application moved under Order VIII, Rule 8, C.P\C.

13. In support of the application moved by the plaintiff, learned counsel after perusal of the various sections of the Customs Act has placed reliance on the provisions of section 138 of the Customs Act, 1969.

14. To examine the scope of jurisdiction, the provisions of section 217 may be considered which reads as under:‑‑ Section

217. Protection of action taken under the Act.‑(1) No suit, prosecution or other legal proceeding shall lie against the Federal Government or any public servant for anything which is done or intended to be done m good faith in pursuance of this Act or the Rules and notwithstanding anything in any other lam, for the time being in force no investigation or enquiry shall be undertaken or initiated by any Government agency against any officer or official for anything done in his official capacity under this Act, rules, instructions or directions made or issued thereunder without the prior approval of the Central Board of Revenue. (2) No suit shall be brought in any civil Court to set aside or modify any order passed, any assessment made, any tax levied, any penalty imposed or collection of any tax made under this Act.

15. A plain reading of the section shows that while subsection (1) pertains to anything done in pursuance of the Customs Act or Rules provides protection to the Federal Government or any public servant for actions done in good faith. Subsection (2) restrains the civil Court to set aside or modify any order passed, any assessment made, any tax levied, any penalty imposed or collection, of any tax made under the said Act. The present suit does not attract any of the conditions and has been filed against the inactions of Defendants contrary to the provisions of section 138 which is special section covering frustrated cargo as discussed hereinafter.

16. Moreover, the bar to maintainability of a suit in the exercise of jurisdiction has to be interpreted to the extent as expressly specified and not by implication. While I am in respectful agreement with the case‑law cited by Mr. Raja Muhammad 1qbal on the point of the jurisdiction of this Court when the hierarchy available under the law has been resorted to. The fact of institution of the present suit by the plaintiff under the circumstances already stated hereinabove would hardly attract a bar as the plaintiff has neither filed any bill of entry for clearance of the consignment, nor the efforts for shipment were made without delay ands, the fact of wrong shipment has been affirmed by the Embassy of D.P.R Korea. Under these circumstances the natural course of events would be a requirement of affirmation of the fact that the plaintiff is the supplier of the Embassy, for purposes of Bonded warehouses and that the present consignment has been wrongly shipped. These ingredients are already available in the letters from the Embassy that are available on record; however, under these circumstances it would be illogical to expect that the Embassy would own a shipment wrongly made. This being the logical chain of events, a conclusion that mere disowning of consignment would not constitute a shipment attracting the provisions of section 138 is opposed to the scheme of the Customs Act, 1969 which expressly provides for such an eventuality by incorporating this section.

17. An interpretation to the contrary would amount to making the provisions of section 138 redundant for their application to the cases specially provided for and disregard constituting a violation of the safeguards provided by the Legislature "requires consideration".

18. The question of Export in section 138 cannot be equated with and the policy for export can hardly be extended to such consignment. An example of such trade is transit cargo of loaded from one vessel for onward shipment to its port of destination, Mere fact that prohibition of such goods from Pakistan as may be forming part of the transit cargo would hardly call for its confiscation. Likewise the consumption of prohibited items on foreign flag vessels, aircrafts and their respective storage as supplied at Port also does not attract such a prohibition as they are not part of the Export trade. The instant case of import of goods prohibited for reshipment from Pakistan also falls under the same category.

19. The objection of the learned counsel for the Defendants Nos.1 and 2 that the plaintiff is also involved in smuggling of liquor seized from a boat at Karachi cannot be equated with the consignment involved in the present case for the aforesaid reasons as it does not attract the provisions of section 138 of the Customs Act., For appreciating these Mr. Sohail Muzaffar has placed reliance on the cases of East and West Steamship Co. v. Collector of Customs, PLD 1976 SC 618, Amir Ali Automobiles Ltd. v. Assistant Collector of Customs, PTCL 1983 CL 141.

20. In the case of Collector of Customs v. S.M. Yousuf, 1973 SCMR 411, the Honourable Supreme Court has held as under:‑‑ "If the construction placed by the Department on that section is accepted the safeguards provided by the Legislature in sections 172 and 172‑A would be rendered completely nugatory it, therefore, follows that goods in relation to which it has not yet been determined in proper proceedings whether any of the provisions of the Sea Customs Act have been contravened or that they are liable to, confiscation are not liable to seizure under section 17; The opening clause in the section: "Anything liable to confiscation under this Act'' makes it clear that the liability of confiscation is already determined or is no longer in dispute. In the instant cases the respondents disputed that any of tile provisions of the Sea Customs Act has been contravened in respect of the foreign cloth seized from their premises and unless a determination is in appropriate proceedings reached to the contrary if cannot be postulated that the same goods are liable to confiscation. There are in the Sea Customs Act also provisions for appeal and revision from the decision of the Customs Officer on this point. In this view the seizure of the goods, belonging to the respondents, by the Customs Officers under section 178 was equally without lawful authority and since it was intended to nullify the effect of the writ issued by we High Court we highly disapprove of their action."

21. The additional documents sought to be produced by the Defendants have already been taken into consideration and discussed in this order. The documents relied upon by the Defendants show the number of cases contained in the container to be 600 while the documents filed by the plaintiff which are also further corroborative of the inspection report of the Nazir of this Court confirms only 97 cases.

22. The case‑law cited by learned counsel for the Defendants Nos. 2 and 3 is thus distinguishable, not attracted to the present suit involving the specific question of interpretation of section 138 of the Customs Act, 1969 and its application to a wrong shipment of Bonded consignment shipped for an Embassy.

23. Mr. Mansoor Shaikh appearing for the shipping agent has confirmed the receipt of instructions for reshipment.

24. In view of the restrictions contained in the provisions of Order VIII, Rule 18 only to the limited conditions specified therein while the application may not be maintainable. Nonetheless the photocopies of the documents having already been placed on record, the Defendants are allowed to include them in the list of documents and file the same at the time of framing of issues and CMA is disposed of accordingly.

25. As a result of the above discussion, the applications are disposed of as under:‑‑ (i) L.M.A. 2704 of 2003 (under Order XXXIX, Rules 1 and 2 is allowed to the extent that the plaintiff is allowed to benefit of the provisions of section 138 for reshipment of the consignment within seven days subject to furnishing of a surety in the form of Bank guarantee in the. sum of Rs.20,00,000 (twenty lacs) to the satisfaction of the Nazir of the this Court. (ii) C.M.A. 6745 of 2003 (under Order VII Rule 11) dismissed. (iii) C.M.A. 6746 of 2003 is disposed of in terms of paragraph No. 24 above. M.B.A./M‑79/K Order accordingly.