2011 PLP 2427 (PTD)

The Customs contention in the parawise comments that the omission disqualified the goods for transit is therefore not maintainable. The Customs at Karachi have also explained in their letter referred to in para 13 supra that `these consignments were not subject to examination by the selectivity criteria of the computer system (PRAL) at the port of entry, but, all the consignments were examined at the port of exit'. This explanation is not plausible because, while allowing transit, GDs and ATTIs are simultaneously filed in accordance with the requirements of Public Notice No.16/2000(A) dated the 30-9-2000. The Data Entry Operator is required to feed all the particulars of the GDs. and ATTIs, and make the required corrections, if any. In case of a discrepancy, the documents are returned to the Clearing Agent for necessary corrections. The appraisement staff in the Custom House and the Customs examina tion staff at the port are similarly required to identify discrepancies, if any. Failure of the Customs at Karachi to identify the discrepancy involved in the material particulars of transit goods through all stages of Customs process reflects neglect and inefficiency on their part.

14. The second issue related to why the complainant failed to fulfill the Customs requirement of applying for amendment of description of goods in ATTIs. There is nothing on record to show that the Customs at Peshawar ever advised the complainant or his representative to get the description amended. The Customs even did not make a mention of this aspect while seeking confirmation of detention of goods from the F.B.R. vide their letter No..Cus-TFS/NLC/21/2010/11325 dated 24-12-2010. The Collector Peshawar had informed the FBR vide his aforesaid letter as follows:-- "Inquiries have revealed that there exists no cigarette industry in Afghanistan and obviously, the subject cigarette paper is a basic raw material used in the manufacture of cigarettes. As per Ministry of Commerce, Islamabad S.R.O. 151(I)/2004 dated 10-3-2004, cigarillos and cigarettes of tobacco or of tobacco substitutes are prohibited in transit to Afghanistan and si1'ice cigarette paper is a basic raw material used in the manufacture of cigarettes, hence taking a lead from this prohibition, this Collectorate is of the view that cigarette paper should also be not allowed in transit to Afghanistan and specifically when no such industry exists there. Accordingly, this Collectorate has detained the instant consignment. Board is accordingly requested to confirm the course of action taken by this Collectorate."

15. It is obvious that the reason for detention of goods by the Customs authorities at Peshawar was not the omission in description but their perception that there was no cigarette industry in Afghanistan to justify import of cigarette paper.

16. The next issue is whether the complainant failed to provide evidence of existence of cigarette industry in Afghanistan to justify import of cigarette paper into Afghanistan. When the AR produced a copy of letter dated 26-12-2010 by Nangarhar Chamber of Commerce confirming existence of cigarette industry in Afghanistan, the DR did not deny that a copy of this letter was available in the relevant file of Peshawar Collectorate. If the Customs were in doubt, they should have got its genuineness confirmed by Nangarhar Chamber through the Afghan Trade Commissioner, Peshawar. During the hearing, the AR also produced a letter by the Afghan Trade Commissioner at Peshawar confirming existence of cigarette industry in Herat and Kabul Provinces. The DR, however, produced a letter from Pakistan's Commercial Counselor in Kabul; reporting non-existence of cigarette industry in Afghanistan as the Afghanistan Trade and Statistical Year Book did not indicate export of cigarettes from Afghanistan. Notwithstanding the fact that evidence supporting existence or otherwise of cigarette industry in Afghanistan was mixed, the Custom House, Karachi informed vide their letter referred to in para 13 supra as follows:-- "(i) It is informed that import of cigarette paper in transit to Afghanistan is permissible as it is not included in the negative D list notified by the Ministry of Commerce vide S.R.O. 151(I)/2004 dated 10-3-2004. The import of cigarette paper in Afghanistan is reflected vide table below:-- Sr. No. Period No. of consignments Quantity/ Weight Value (in Rs.) 1 2009 01 20.00 Kgs 247,578 2 2010 06 139.28 M. Ton 13,230,286 3 2011 upto 30th June 01 23.25 M.Ton 3,293,929 The Collector Peshawar's action to detain the cigarette paper under reference was thus unmaintainable and inconsistent with the practice in Custom House, Karachi.

17. The fourth issue is regarding the Customs empowerment to defer permission to transport the goods in transit to Afghanistan. The DR contended that as F.B.R., and Ministry of Commerce had duly endorsed detention of goods disallowing transit, the Customs action was justified. The AR, however, cited the judgment of Peshawar High Court in Writ Petition No.1681 of 1998 wherein detention of cigarette paper was held unlawful unless it was excluded from the scope of Afghan Transit through a Gazette Notification. The instructions of F.B.R. and Ministry of Commerce received vide F.B.R. letter C.No.03(1)L&P/04-A dated 7-4-2011 and communicating Ministry of Commerce's endorsement of the Collector's suggestion in this case not to allow transit of cigarette paper could not therefore be lawfully pressed into service. Findings:

18. In view of the foregoing discussion, maladministration on the part of the Customs at Peshawar is established in terms of section 2(3)(ii) of the FTO Ordinance, 2000. Recommendations:

19. F.B.R. to- (i) direct Collector Customs Peshawar to allow transit of the goods after getting the description in the ATTIS appropriately amended; (ii) call upon the clearing agent in Karachi to show cause why action should not be taken against him for the omission of description of cigarette paper in ATTIS; (iii) initiate disciplinary action against' the relevant Customs staff at Karachi and Peshawar for their neglect and inefficiency; and (iv) report compliance within 30 days. C.M.A./202/FTO Order accordingly.