2004 PLP 1879 (PTD)

5. Mr. Mirza Muhammad Awais, Advocate, representing the Complainants, stated during the hearing that this was a serious matter; it related to a small exporter who had exported two consignments in 1997, the duty drawback was sanctioned, but payment was not made. On inquiry he was informed by the Customs House that the amount had been adjusted against a recovery of duty drawback decided vide an adjudication order, dated 18‑3‑1995. The Adjudication Officer had arbitrarily, without verifying realization of proceeds, and without issuing show‑cause notice, passed an order for recovery of the amount, which was not even served on them. They, therefore, requested the Collector to re‑open the case under section 195 of the Customs Act and decide the matter on the basis of the factual position. There was no reply to this letter and copy of the order‑in‑original was not supplied.

6. The learned Advocate stated that the Complainants approached, the Wafaqi Mohtasib and, on his direction, the Assistant Collector of Customs, vide letter, dated 6‑4‑1999, sent a copy of the order‑in -original, dated 18‑3‑1995. They filed an appeal and the Collector (Appeals), vide order, dated 1‑6‑2000, remanded the case to the Adjudication Officer for de novo consideration. They made repeated requests to the customs authorities to hear the case for two years but nothing happened Eventually the order was passed on 15‑6‑2002 in their favour that the duty drawback was admissible advising them to lodge a claim. The claim was lodged on 13‑7‑2002 but the payment was kept pending on account of mala fide intention and ulterior motives.

7. They had given adequate proof that the claim was in order, the cheque was ready but it was not issued with ulterior' motives. The learned Advocate stated that the refund had been sanctioned but the file remained with the CAO for one whole year and the/cheque was issued only when notice from the Federal Tax Ombudsman Secretariat was received. The Cheque (No. 494374 for Rs.100,133) was deposited in the bank but the State Bank issued a memo. that the amount differed from the relevant advice. When contacted, CAO replied that the advice was correct. Clearly an incorrect advice was sent, which the CAO has not rectified and the amount has not been realized. He stated that the Complainants have been pursuing the matter for the last six years and the duty drawback claims sanctioned by, the Customs. Authorities in 1997 have still not been paid to them. This amounted to criminal misconduct on the part of the officials responsible for the inordinate delay and harassment. He requested that their prayer be accepted and very serious view be taken of this complaint.

8. The Deputy Collector of Customs, representing the Department, stated that when the Complainants applied to the Collector of Customs to re‑open the case, more than two years had elapsed and it was beyond his powers to exercise his authority under section 195 of the Customs Act. However, on the direction of the Wafaqi Mohtasib a copy of the order- in‑original was provided and the case was re‑adjudicated on remand from the Collector (Appeals). He admitted that the Adjudicating Officer decided the matter after a period of two years. He also admitted that if complete refund documents had been filed on July, 2002, it should not have taken another fourteen months to decide the refund and issue the cheque. He assured that the problem relating to the difference in the amounts shown in the cheque and the advice issued by the Custom House would be resolved immediately.

9. It is clear from the above that (i) Complainants submitted BCA to the Assistant Collector of Customs on 10‑8‑1994; (ii) despite the evidence available, the Assistant Collector passed an arbitrary order, dated 18‑3‑1995 for recovery of amount of Rs.2,45,183; (iii) the Customs Authorities did not supply a copy of the order for four years till the issue of the directive by the Wafaqi Mohtasib in 1999; (iv) it took 14 months for the Collector (Appeals) to decide the appeal and remand the case; and (v) another two years for the Assistant Collector to decide the admissibility of refund; (vi) the refund claim was filed in July, 2002, it was sanctioned but the file remained pending with the Chief Accounts Officer, and (vii) the cheque was eventually issued in August, 2003 when a notice from this office was received. CAO is not willing to rectify the reported difference in the cheque and the advice sent to SBP. This is a classical example of ineptitude, callousness, perverse attitude, and downright viciousness of the functionaries determined to frustrate the ,efforts of small businessmen to get their due right from the Customs Department.

10. The Complainants are genuinely aggrieved on account of the C inordinate delay in payment of the dues and the apathetic attitude of the respondents in solving their problem. There is no provision in the Customs Act for mark‑up/compensation as requested by them. As regards the maladministration summed up in the foregoing paragraph, it, is recommended that C.B.R. (i) institute a thorough inquiry and fix the responsibility. (a) "for delay of more than two years in adjudication on remand. (b) for keeping the sanctioned claim pending for one year and not issuing the cheque; (c) eventually issuing a defective cheque (or a defective advice) not being enchased by the State Bank; (d) and the insistence of the Accounts officials that there was no error in the cheque and its advice; (ii) take strict disciplinary action against the defaulting officials; (iii) direct the Collector of Customs to ensure that the objection raised by the State Bank about the cheque rectified within fifteen days; and (iv) Compliance (i) and (ii) be reported in two months and compliance (iii) be reported in one month. C.M.A./9/FTO/ Order accordingly.