ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P. No.D-256 of 2011

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Date                      Order with signature of Judge

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1.        For Katcha Peshi.

2.         For hearing of Misc. No.6513 of 2011.

3.         For hearing of Misc. No. 1121 of 2011.

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17.05.2011

 Mr. Kh. Shamsul Islam, Advocate for the Petitioner alongwith Mr. Imran Taj Advocate .

Mr. Sibtain Mehmud, Advocate for Respondent No.1.

Mr. Muhammad Sarfarz Sulehri, Advocate for Respondents No.2 and 3.

Mr. Sadaqat Khan, Standing Counsel.

 

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    This petition has been filed by an Afghan national who had imported a consignment of polyester fabrics under the Afghan Transit Trade, impugning the withholding of his consignment and the registration of FIRs against him by the Customs Authorities and the National Logistic Cell who has been arraigned as respondent No.2.

 

Briefly stated the facts of the case are that the customs authorities had, in respect of Afghan Transit Trade has authorized only the respondent No.2 to transship the goods to the Afghan Border either themselves or through their duly authorized carriers to whom they would issue the Trip Detailed Report (TDR) and only such carrier to whom this TDR was issued would be authorized to transship these goods to the Afghan Border. After the consignment was loaded on a truck on the basis of a TDR, a report was received by the Customs Authorities from the National Logistic Cell that they had not issued any TDR for this consignment and on an inspection the TDR was declared to be fake and forged TDR and therefore, the consignments were detained and FIRs were filed, both by National Logistic Cell and the Customs Authorities, against the petitioner, their clearing agent, their forwarding agent, the transport carriers and the drivers of the transport carriers. It is against this action that the petition has been filed.  

 

We have heard Mr. Khawaja Shamsul Islam learned counsel for the Petitioner, Mr. Sibtain Mehmud the learned counsel for the Customs Authorities and Mr. Sarfaraz Sulehri the learned counsel for Respondents No.2 and 3.

On the last date of hearing an application under order 1 rule 10 CPC was filed by the clearing agent praying that he may be impleaded as a party as according to him his clearing agent’s license was misused by the petitioner and he would like to assist the Court on this point. We have heard him also.

 

Before we go into the main petition we consider it appropriate to first dispose off the application under order 1 rule 10. We are of the view that the intervener is not a proper and a necessary party for the resolution of the dispute as we do not intend to go into the merits and the factual position of the case which we will leave to the appellate forums available under the Customs Act and the Special judge Customs and Taxation who will be looking after the criminal aspects of this case and the intervener will have an opportunity to present his case before these forums. Even otherwise we would like to make it clear that the intervener may, if he so desires, take any legal action against the petitioner which he is entitled to take including filing of the suit for damages and getting a FIR registered for misuse of the license and any other offence, which according to him has been committed by the petitioner and if a cognizable offence is made out, such FIR can always be registered in accordance with law. We, therefore, dispose off this application as above.

 

Coming to the petition Mr. Khuwaja Shamsul Islam submitted that although charges are being levied against him for smuggling but he once again states at the bar that the consignment has been imported under the Afghan Transit Trade to be used in Afghanistan only and there is/was no intention of defrauding the customs Authority and instead of sending the consignments to Afghanistan, utilize the same in Pakistan and to show his good faith he has offered that he is willing to pay the disputed customs duties and taxes, if any, leviable and to get the consignment delivered at the Afghanistan border under the supervision of a customs officer, if the customs authorities so appoint and will claim refund of the duties and taxes deposited with this Court only on production of relevant documents including cross border certificate issued by the concerned officer.

 

His arguments and offer are strongly opposed by Mr. Sibtain Mehmud, the learned counsel for Respondent No.1 who has filed a copy of the order in original No.08 of 2011 dated 05.05.2011 whereby the consignments imported by the petitioner have been confiscated and he has been black listed and has been disallowed to transit/import/export any cargo through Pakistan in future, whereas, penalty has also been levied on the forwarding agent and the clearing agent. He submitted that this Court does not adjudicate on disputed facts and never sits as an investigating authority. He submits that the conduct of the petitioner leads to a reasonable presumption that on the basis of fake TDR he wanted to smuggle these goods, which were meant for an Afghan Transit Trade, in Pakistan without payment of duties.

 

We have examined the case in the light of the arguments of the learned counsel.

 

A perusal of the impugned order of adjudication reveals that it has been passed by an officer who has not issued a show cause notice and it has been admitted by Mr. Sibtain Mehmud that the officer who had issued the show cause notice has since been transferred and therefore, he could not complete the adjudication order. It has also been conceeded that the officer who finalized the adjudication order did not issue any notice. On this point we recalled that this Court in its judgment in the case of SIEMENS PAKISTAN ENGINEERING CO LTD. VS. PAKISTAN and others reported in 1999 PTD 1358 has held that the Additional Collector who passes the adjudication order has to give a personal hearing to the petitioner and if he fails to do so, he not only violates the principles of natural justice but also the statutory requirement under section 44 of the sales Tax Act and after holding as above, the order of the Additional Collector was held to be not valid but malafide, without jurisdiction and of no legal effect.

 

Respectfully following the above judgment we set aside the impugned order in original. However, the department will be free to issue a fresh show cause notice and take action on adjudication in accordance with law and such show cause notice will not be challenged by the Petitioner only on the point that show cause notice had earlier been issued and order passed, which has been set aside by this Court.

 

We are however, inclined to accept the offer of Mr. Khuwaja Shamsul Islam and direct that subject to deposit of Rs.20,00,000/- (Rupees Twenty Lac Only) on account of Customs duties and Rs.6,00,000/- (Rupees Six Lac only) on account of KPT dues by the Petitioner with the Nazir of this Court and subject to the Nazir drawing samples from the consignment so that samples of case property may be retained for the purpose of the case, the department will release the consignment and the NLC will issue TDR after completing the necessary formalities without delay. After completion of such formalities and issuance of TDR the consignment will be released. If, however, the NLC is inclined to hold that such TDR cannot be issued for reasons other than the prior history of this case then they will pass an order in writing within one day of such refusal and the petitioner may seek relevant remedy against such refusal.

 

 However, the adjudication process and the criminal trial before the competent forums will continue and Mr. Khuwaja Shamsul Islam has undertaken that his client will cooperate with the authorities in this respect.

 

The Nazir is directed to invest the amount deposited in some interest bearing securities in two separate accounts, first the customs account and second the KPT account, which will be given to the party who succeeds in the adjudication/appellate proceedings. The amount deposited with the Nazir will be retained by him till the order of the tribunal and as soon as the order of the tribunal is received, the Nazir will pay the amount to the party who succeeds before the tribunal. However, the KPT amount will also be paid by him irrespective of the order of the tribunal but after passing the order of the Tribunal.

 

As far as the trucks are concerned, they may be released on supardari after completion of necessary procedure and formalities.

 

This petition is disposed off in the above manner.

 

JUDGE

JUDGE

Sajid