2008 PLP 585 (PTD)

(ii) Complainants were aggrieved in February, 2003 but the complaint was lodged in February, 2005 after two years and therefore it was time-barred under section 10(3) of the Ordinance. (iii) Complainants have failed to exhaust their responsibility as directed by the High Court and have failed to provide ex-bond bill of entry in terms of section 104 of the Customs Act. (iv) The matter is already sub judice before the High Court and therefore the subject cannot be termed as a case of maladministration. (v) The complainants have not come to this office with clean hands but with mala fide intention to inflict loss on the Government exchequer.

4. In parawise comments to the complaint the following statements were made: (i) Declared value was not transaction value and goods were assessed at the prevailing customs value of $0.40/meter. (ii) Complainant's had not only accepted the value and warehoused the goods but after one month presented second GD for assessment and warehousing of the goods. Seemingly they had no objection on the assessment of these two consignments and the Constitutional Petition was filed as an afterthought five months later. (iii) Nine consignments were cleared without any objection at the values ascertained by the customs but in respect of remaining two consignments ex-bond GDs were never presented to pass a. fresh assessment order in compliance with the High Court's order. The order, for assessment and release could only be passed on ex-bond GDs but even after lapse of 45 days there was neither any complaint nor any representation in the High Court. (iv) Even if GDs had been presented at the Customs Customer Services Centre, it was the responsibility of the clearing agent to deliver GDs to the Group. Since the importer did not present GDs, notices were issued under section 111(b) of the Customs Act for clearance of the goods; otherwise the goods should be auctioned as per schedule appearing in the newspapers on 30-9-2004. (v) Complainants failed to approach the respondent and the goods were auctioned on 11-10-2004 and delivered to the successful bidder vide delivery order dated 23-11-2004. (vi) The subject complaint be dismissed as not maintainable under the aforesaid provisions of the Customs Act.

5. The following picture emerges from the submissions made and arguments advanced by both the sides: (i) When GDs were filed in January and February, 2002 the customs authorities did not accept the declared value of $ 0.35/yard and enhanced it (by 14%) to $ 1.40/yard. (ii) Importer contested the 14% value enhancement before the High Court through a Constitutional Petition, which was disposed of on 10-9-2003 with the direction to Customs to reassess the goods within forty-five days. (iii) Importers claimed that they repeatedly approached the Collector, Additional Collector and Assistant Collector with the request to implement High Court's directive but it was not acceded to and they could not obtain reassessment order and release of 'goods. (iv) Customs claimed that ex-bond GDs were not presented by the importers and it was not possible to implement the High Court's order for reassessment within forty-five days. Goods were auctioned in accordance with law and there was no maladministration on their part. (v) Complainants stated that instead of reassessing the goods and releasing them on payment of duty and taxes, customs decided to auction the goods, and the reserve price of the two consignments was, calculated at Rs.42,63,

713. According to the figures supplied by the Consultant, three auctions were conducted on 22-6-2004, 11-8-2004 and 11-10-2004. Highest bid in first auction was Rs.11,10,000 in the second auction it was Rs.10,25,000 and in the third auction the highest bid was Rs.15,50,000 which was accepted and the goods were released to the highest bidder on 23-11-2004. (vi) Complainants alleged that the goods were auctioned for less than one third value of the duty-paid value resulting in huge short recovery of Rs.28,70,000 their investment was blocked for two years; they suffered huge financial loss and entitled to payment of ascertained value of goods and compensation for other expenses and losses incurred by them.

6. The circumstances of the case raise serious doubts about the conduct of both the importers and the customs officials. Respondent's argument that complainant did not comply with the High Court's order is not acceptable. It should have summoned the import documents from the importer/Group concerned and issued an assessment order within forty-five days. No action was in fact taken for full one year and the goods were auctioned at one third of the reserve price. It also seems that importer did not vigorously pursue reassessment and clearance of goods while the customs authorities were more keen to auction the goods. It is a clear case of .gross maladministration on the part of the customs and this office has taken cognizance of the complaint on account of the arbitrary actions of the department and the administrative excess committed by its officials. The objection of the respondent about the jurisdiction of this office is uncalled for.

7. The conduct of the importer is also not free from doubts. If the customs authorities were adamant not to assess the goods, the importer should have protested before the appropriate administrative, quasi judicial or judicial forums. Importer could have paid duty and taxes on 14% enhanced value and represented for refund of difference of duty and tax instead of abandoning the goods to auction. On the other hand, the auction of goods at a very low price and the claims for compensation by the importer are matters of concern and the possibility of collusive foul play by the customs staff cannot be ruled out.

8. It is recommended that C.B.R. depute the Director General Inquires to (i) carry out a thorough' probe into the matter to ascertain the reasons why reassessment was not done for one year as directed by the High Court; (ii) why the goods were disposed of in the third auction at ridiculously low prices instead of release on full payment of duty and taxes at the declared/enhanced value; (iii) ascertain the (collusive) involvement of importer and/or the customs staff in the auction of goods; and (iv) take appropriate action against defaulters within forty-five days: (v) result of the inquiry and action taken in the matter be intimated to this office within two months. C.M.A./531/F. T.O. Order accordingly.