MAZHAR IQBAL vs COLLECTOR OF CUSTOMS (PREVENTIVE), KARACHI and 2

' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--The petitioner has sought declaration that the respondent No,2, Directorate General Intelligence and Investigation (Customs and Excise) has no jurisdiction in pursuance of S.R.O. 388/82, dated 22-4-1982 to detain the out of charge bill of entry and that after payment of duties and taxes assessed by the officers of respondent No,1, the petitioner is entitled for the release of his consignment. He has sought further direction to the respondents Nos.1 and 2 for the release of consignments on payment of duties and taxes already assessed and for issuance of delay detention certificate and free slip.

2. Briefly stated the relevant facts are that the petitioner imported the consignment comprising cloth. After arrival of consignment the petitioner filed a bill of entry. On 100% examination of the goods by the officers of respondent No,1, the duties and taxes were assessed to the tune of U.S. $ 18,600.30. The petitioner was prepared to deposit the assessed amount of duties and taxes but the out of charge bill of entry was detained by the officials of respondent No,2, who issued detention notices as well.

3. The respondent No,1 in its Parawise Comments has stated that the consignment was assessed provisionally under section 81 of the Customs Act, 1969, in pursuance of the instructions issued by the Central Board of Revenue and on the basis of evidence obtained from Appraisement Collectorate. The fair value was to be finalized after issuance of valuation advice from Customs Valuation Department to whom a reference was made. It is further stated in very clear terms that the respondent has no objection to the release of consignment. It is further stated that the respondent No,1 has processed and completed its work in accordance with the law and the bill of entry duly completed has been handed over to the petitioner for further action after payments of customs duties.

4. The respondent No,2 has also filed para.:wise Comments stating that a credible information was received through Director, Directorate General of Intelligence and Investigation (Customs and Excise) Karachi, to the effect that there is misdeclaration in respect of the origin of the consignment as well as description and value thereof. Consequently, a team of the officers of Directorate of Intelligence and Investigation was deputed to intercept the consignment. The team so constituted reached at the spot, served a detention notice on the person in custody of consignment and asked not to deliver the consignment without examination by the staff of respondent No,2, in order to verify the veracity of the information received. A request was also made to Assistant Collector Customs, Air Freight Unit on 20-12-2003 for supply of documents for scrutiny and examination of the consignment. It is pertinent to note that this information was sought after detention of the bill of entry which were out of charge. It is further alleged that the Assistant Collector and Additional Collector Air Freight Unit, did not supply the documents which led to the conclusion that the importer and customs staff were in collusion. The non-supply of documents resulted into delay in formal seizure of the goods and issuance of show-cause notice within time stipulated under section 168(2) of the Customs Act. The investigation continued and according to respondent No,2, it was ultimately confirmed that the goods were of Indian origin and therefore, a contravention report was prepared and was submitted to the Adjudicating Authority, for initiation of adjudication proceedings. The examination and assessment of the consignment by the staff of respondent No,1 is not denied. However, it is contended that the importer and the staff of respondent No,1 were in active connivance.

5. We have heard Mr. Khawaja Shamsul Islam. Learned counsel for the petitioner, Messrs Ashfaq Hussain and Raja M. Lqbal, learned Advocates for Respondent No,1 and Mr. S. Tariq Ali, Federal Counsel for Respondents 2 and 3.

6. Mr. Khawaja Shamsul Islam, learned counsel for the petitioner has submitted that the issue pertaining to the jurisdiction vesting in the officials of respondent No,2, already stands decided by this very bench in C.F. No, D-817 of 2004, Shahzad Ahmed Corporation v. Federation of Pakistan and others, vide judgment dated 7-9-2004. He has pointed out that after a detailed and in-depth examination of all the relevant laws and notifications, it was held that the officers of the Directorate General of Intelligence and Investigation has no jurisdiction/power to detain or seize the goods and re-examine the same after the goods were examined A and assessed by the appropriate officers of the Appraisement Department.. It has been further held that any such detention/seizure and all subsequent proceedings in pursuance thereof are without jurisdiction and not sustainable in law.

7. The learned Advocates for respondent No,1, Collector of Customs (Preventive) have supported the contention of learned counsel for the petitioner and have reiterated that the respondent No,1 has no objection to the release of goods on payment of assessed duty and taxes.

8. On the other hand, Mr. S. Tariq Ali, learned Standing Counsel has stated that he does not have much scope for any arguments as the point of jurisdiction already stands decided against respondent No,2 in the judgment relied upon by the learned counsel for the petitioner against which no appeal has been preferred before the Hon'ble Supreme Court, to the best of his knowledge.

9. In view of the above circumstances and following our own judgment, dated 7-9-2004 in C.P. No, D-817 of 2004, the petition is allowed in the following terms:

(1) The impugned action taken by the respondent No,2 is without jurisdiction which is hereby declared to be void and all subsequent actions in pursuance thereof are also held to be void and are hereby quashed.

(2) The respondents are directed to release the consignment immediately to the petitioner on payment of customs duty and B taxes as already assessed.

(3) The respondents are directed to issue delay/detention certificate and free slip for the reason that the petitioner is not responsible for the delay in the release of goods and therefore, is not liable to pay any demurrage charges, container detention charges or any other such charges.

(4) The officers of the Customs, competent in law shall be at liberty to initiate any other action if so desired strictly in accordance with law and the jurisdiction vesting in them.

10. Before parting with this judgment, "we feel it appropriate to bring on record that we have observed that the officers and staff of the Directorate General of Intelligence and Investigation (Customs & Excise) are at loggerhead with the officers and staff of the Collectorate of Customs (Appraisement) as well as Collectorate of Customs (Preventive). They are affront to each other and a tug-of-war is going on between them on the point of assumption of jurisdiction. This confrontation is not a healthy sign, particularly, when all three belong to the cadre of officers of the Customs group and are under the administrative control of C.B.R. It is high time that, the C.B.R.

Should seriously deliberate over the matter and settle the question of jurisdiction to be exercised by the officers and staff of the Collectorate of Customs (Appraisement) Officers and staff of the Collectorate of Customs (Preventive) and the Officers and staff of the Collectorate General of Intelligence and Investigation (Customs & Excise). There should be clear-cut demarcation of the powers and jurisdiction conferred/vested in each department, avoiding the overlapping of powers as far as possible. The immediate action in this behalf on the part of C.B.R. Is imperative for the better administration of the Customs Department, health of national economy, removal of the causes for unnecessary harassm ent to the importers/citizens who are entitled to better treatment at the hands of public functionaries and for reducing the unnecessary litigation.

11. We also feel it appropriate to point out that while conferring jurisdiction on the officers, the C.B.R.

Should demonstrate more care and should resort to a bit of research. For instance, we would like to point out that vide Notification No, S.R.O. 388(1)/82, dated 22nd April, 1982. Authorizing officers of the Directorate of Intelligence and Investigation (Customs & Excise) at serials Nos. 1, 2 and 3 (Intelligence Officers, Senior Intelligence Officers, Appraisers of Intelligence & Investigation) has authorized the Officers to exercise the powers and discharge duties specified in Column No,3 which include sections 162 and 166 of the Customs Act, 1969. We have been informed that the officers specified above are not the gazetted officers. The result is that authorization is manifestly against the specific provision of statute, for the reason that it is specifically provided in section 162 that any Judicial Magistrate may on application by a gazetted officer of Customs stating the grounds of his belief that goods liable to confiscation or documents or things which in his opinion will be useful as evidence may issue a warrant to search for goods, documents or things and it is provided in section 166 that any gazetted officer of Customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making. It is abundantly clear that by virtue of the statutory provision the application to a Judicial Magistrate for issuance of search warrant can be submitted by a gazetted officer and likewise the witnesses and documents can be summoned by gazetted officer of the Customs. This anomaly in the statutory provision and the S.R.O. Is likely to create confusion resulting in loss to the Revenue, even in genuine cases. One instance only has been cited to highlight the need for more research by the C.B.R. While entering into the exercise desired by this Court.

12. The petition was allowed by a short order after hearing the learned Advocates for the parties on 29-9-2004. These are the detailed reasons in support thereof.