Customs Appeal No.K-895 of 2004, decided on 4th March, 2005. Versus Customs Appeal No.K-895 of 2004, decided on 4th March, 2005.
ORDER
Facts leading to this appeal are that appellants imported Betel Nuts from Indonesia on 25-2-2003, during the process of and sought their clearance by filing Bill of Entry, dated 28-2-2003. During the process of clearance, an information was received in the Appraising Intelligence Branch that the goods imported are infected/infested one and are not fit for human consumption. As such consignment imported by the appellant was examined in presence of authorized agent of the importer.
2. On physical examination, it was observed that they are of bad quality infected in general and having insects inside, therefore, sample was drawn in presence of importer's representative and was sent to Messrs H.E.J. Research Institute of Chemistry, University of Karachi. Vide report, dated 7-5-2003 Messrs H.E.J. Laboratories confirms that 18% of referred sample of Betel Nuts is infested with insects.
3. It was further remarked by them that: "the given sample of betel nuts was found to have a high microbiological load, above the specified limit for food items, therefore, the sample is not fit for human consumption."
4. In view of this report of H.E.J. Laboratories it was observed that consignment imported by appellant is hit by Import and Trade Procedure Order 2000, being a banned item.
5. With these observations a Show-Cause Notice, dated 22-1-2003 was issued, which was replied by the importer mainly based on a legal ground of jurisdiction. It is stated by him that where there is a case of no loss of revenue, officers of Collectorate of Customs, Sales Tax and Central Excise (Adjudication) have no jurisdiction in the matter. In support of his ground he has referred S.R.O. 377(I)/2002, dated 15-6-2002 which specifies that:--
"(a) cases involving rejection of claim for refund of Customs and Central Excise duties and Sales Tax;
(b) cases involving technical violation of manifest clearance;
(c) cases involving violation of baggage rules;
(d) technical violation of import/export restrictions without the involving evasion of duty and taxes;
(e) cases involving adjudication by the officers of Controller of Customs Valuation's Officer;
(f) cases specifying remanded by the superior Courts to the officers of the concerned Collector's name or by designations;
(g) cases involving routine condonation of time limit or procedural omission, and
(h) cases relating to Makran Civil Division, involving goods, the value of which does not exceed.... Hundred thousands rupees (excluding the value of conveyance used for transportation of goods)."
6. Basing on clause `D' of above S.R.O. it is pleaded by appellants that show-cause notice and Order-in-Original issued in the matter are without jurisdiction as the case pertains to the technical violation of Import Trade and Procedure Order, 2000.
7. This defence pleaded by the appellant was not accepted by the Adjudication Officer, it was ordered that goods be confiscated along with the penalty imposed on importer.
8. Being aggrieved by the decision, this appeal has been preferred.
9. Heard learned representatives for rival parties and perused the record.
10. During the course of arguments before this Tribunal the main emphasis of learned A.R was on the point that in view of S.R.O. 377(I)/2002, dated 15-6-2002, Deputy Collector Adjudication has no power in the matter and as it is a case of technical violation. In support of his arguments he has relied on the C.B.R. Letter, dated 15-6-2002 describing the principal and function of adjudication, with reference to this letter it is argued out by A.R. that through this letter C.B.R. has directed the Adjudication Officers that "relevant provisions of law and the rules must be followed while conducting a case and the Adjudicating Officers must ensure that they are not going beyond their mandatory authority". According to A.R. in view of above direction, the Order-in-Original passed in the matter if read with show-cause notice issued in the matter show that it is not a case of revenue loss, but is of technical violation, therefore, Customs Officer relating to adjudication department has no jurisdiction in the matter, but while pleading so he has failed to go through S.R.O. 450(I)/01, dated 18-6-2001, issued much prior to S.R.O. 377(I)/02, dated 15th June, 2002, which so far has not been superseded by any other legislation, authorizes Customs Officers to restrain and prohibit the import of goods on the ground of public morality or order, public security, hygiene or health. The relevant sub-rule (7) of Rule 226 of sub-Chapter (3) of S.R.O. 450(1)/01, dated 18-6-2001 is hereby reproduced for ready reference:--
"Admission of goods imported for a Zone shall not be refused except when the goods are liable to restrictions or prohibitions imposed on the grounds of public morality or order, public security, hygiene ??????????? or ???????? health ?? or for veterinary or phytopathological consideration or relating to the protection of patents, trade marks or copy rights".
11. So to say that the Customs authorities belonging to Adjudication in case of technical violation are functus officio is not correct , because it is a settled principle that where there is a conflict between a basic natural right born out of natural justice and a provision of law, the former will prevail, even though the right is not specifically mentioned in the list of rights guaranteed under the Constitution. With this stage of fact the life and health of an ordinary person, who at later stage are the consumer of same cannot be overlooked and they cannot be denied of their nature of right of security mere on the technical ground of jurisdiction.
12. Even otherwise appellant by their own conduct at import stage had brought the goods i.e. Betel Nuts within the ambit of Collectorate (Adjudication) as they sought clearance of the same under 0802-9010 vide Bill of Entry, dated 25-3-2003 and the referred. P.C.T. Heading relates to edible product and if in case the consignment if is not found fit for human consumption it hits by Clause HI of Negative List of Appendix `A' of S.R.O. 489(I)/2000, dated 17th July, 2000 and authorize Customs officers to enter into the matter and take cognizance of it.
13. It is further argued out by appellant that laboratory report of PCSIR 'Laboratories, dated 22-3-2003 with reference to the subject consignment had reported that the given sample of Betel Nuts is fit for human consumption from biological point of view, but on interrogation from learned AR he has not been able to clarify that how the sample of consignment was obtained by Department of Plant and Protection at their own and under what authority they had referred the same to laboratory for examination without any consent of the Customs authorities, which by virtue of S.R.O. 450(I)/2001 as referred above has jurisdiction to interrupt in the matter if the same is injurious to human life, but no satisfactory reply has been given except persisting on his view point that it is only Plant and Protection Department, who can order for release of goods or detain the same and, Department of Plant and Protection vide their Letter, dated 25-3-2003 had observed that:--
"Plant and plant products specified below were examined by a duly authorized officer of the Department and were found apparently free from injurious insects and diseases. The consignment may now be released to the consignee."
14. In continuation of his argument learned AR has highly relied on the point that it is only Plant and Protection Department who has jurisdiction to interrupt in case where there is any question of fitness of consignment for human consumption and Customs authorities have no power to deal with such question of fitness. He has relied his argument on the basis of judgment pronounced by Honourable Supreme Court of Pakistan in C.P. No.288-K/2000, Collector of Customs v. Messrs Batala Ghee Mills.
15. With due respect to the observation made by Honourable Supreme Court of Pakistan, this case is not applicable in the matter as the facts and the commodity discussed in that matter was absolutely different to the present one. In that matter goods was `Vegetable Ghee', and while discussing this aspect in C.Ps. Nos.2648 to 2650/03, it was observed by Honourable Supreme Court of Pakistan that:--
"Though the above observations of the Honourable Supreme Court of Pakistan were made prior to the insertion of Clause H.I. in the Negative list, the principle still holds good and if any product which in its imported or raw form is not fit for human consumption, but can be made fit for human consumption after carrying out the due treatment process in Pakistan, in our considered view would not fall in the Negative List," whereas in the present case though the authenticity of this letter of Department of Plant Protection, dated 25-3-2003 coupled with P.C.S.I.R. report has not been brought on record by the appellant, but anyhow even if it is taken for granted that this is a genuine document then also it cannot be relied upon, because neither this letter clarify that how the samples of the subject consignment reached to them or this particular letter or report relates to the subject consignment because neither the L/C. No: of disputed consignment nor IGM number or date of this very consignment has been mentioned in this letter or report to connect the same with the subject consignment. Mere mentioning the name of importer and the nature of goods examined, and import from Indonesia is not sufficient to base the case for release of goods of sensitive nature on this incomplete and unauthentic report, which by another laboratory of HEJ Research Institute of Chemistry, University of Karachi have been declared as not fit for human consumption and too has not been challenged by the appellant.
16. To further strengthening his case learned A.R. has relied on an Order-in-Original No.5912004 pertaining to the import of Black Pepper wherein in spite of report of H.E.J., Laboratories that out of total consignment, 235 bags of Black Pepper were found infested whereas the rest 863 bags were cleared fit for human consumption, those 863 bags which were fit for human consumptions were ordered to be released on leviable duty and taxes. Basing on that decision it is pleaded that the same practice may also be followed in, the matter, but these arguments have no reasoning in them as at first the order of any Adjudicating Officer is not being on this forum, beside. that after lengthy discussion it has been observed by Honourable Supreme Court of Pakistan that:
"Article {9 of Constitution of Pakistan dealing with the Fundamental Right provides that `No person shall be deprived of life or liberty save in accordance with the law. The word `Life' has been interpreted in the case reported as Messrs Shehla Zia v. WAPDA (PLD 1994 SC 693) as under:--
"The word `life' in the Constitution has not been used in a limited manner. A wide meaning should be given to enable a man not only to sustain life but to enjoy it."
17. Thus in view of above observations the prayer made by appellant that after segregation of the infected portion of consignment the rest of the same be released is not possible as in view of the small size of betel nuts and large quantity of consignment and also on admitted fact that laboratory report is not based on the number of bags but a specific c quantity was sent, out of which 17.80% were not found fit, which if concluded with the whole consignment with the same percentage it would be impossible to segregate uninfested nut from the infected one as been admitted by the learned counsel appearing for the importer before Honourable High Court in Petition Nos. D-1132 to 1134 of 2003, which read as under:
.
"(i) In the present stage 9.10% infested betel nuts cannot be segregated visually from the entire consignment.
(ii) That 9.10% can be segregated after cutting each betel nut into two parts,
(iii) Monitoring of separation is not possible."
18. In the light of above discussion I fully rely on the observation made by Honourable Supreme Court of Pakistan that:--
"It is the duty of the State to see that the life of person is protected as to enable him to enjoy it within the prescribed limits of law. Pollution, environmental degradation and impure food items also fall in the category of deprivation of life."
19. The appeal of appellant having no merits is hereby dismissed. The order mutatis mutandi will apply appeals bearing Nos.897 to 899, 901, 902, 904, 907, 910 to 912 of 2004.
H.B.T./470/Tax (Trib.) ???????????????????????????????????????????????????????????? Appeal dismissed.