The petitioner seeks the following relief through Constitutional Petition:-- "(a) A declaration that the act of respondents for not allowing the petitioner to get/clear the goods for home consumption, by holding the duty paid Bill of Entry is without lawful authority, and of no legal effect. The act of the respondents is void as in defiance to the mandate contained in section 80 of Customs v Act, 1969 and based upon non bona fides.
(B) A direction of this Hon'able Court, to the respondents and their functionaries, as to enable the petitioner (by returning the Bill of Entry to him after stamping out-charged) as to get clear the goods for home consumption without any delay or hindrances."
2. The case of the Petitioner is that he is a regular importer of various items including PVC Vinyl Composition Ti.1es, PVC Flooring, and Wall Papers.
3. The Petitioner imported consignment of Torch Mosquito Swatters Worth US$ 5021. The consignment arrived in Pakistan vide IGM No.1172 of 2004, dated 28-7-2004. On arrival of goods the petitioner, filed Bill of Entry for home-consumption under section 79 of the Customs Act, 1969.
4. The respondents examined the goods on 9-8- 2004 and assessed the goods to duty and taxes.
The Petitioner paid the duty so assessed.
The case of the Petitioner is that the respondents have been holding the Bill of Entry and not releasing the goods imported by the Petitioner which are lying at the port area, within the charge of KPT and the Petitioners are being burdened, day to day, charged and demurrage, hence the present Petition with relief referred to above.
On notice the respondents submitted their comments.
We have heard the petitioner's counsel as well as respondents' counsel and Azhar Hussain, Deputy Collector Customs Appraisement.
5. Respondents' counsel has frankly admitted that the consignment has been detained against the demand notices pertaining to other consignments imported by the petitioner in respect of which misdeclaration was made, It was further contended by him that subject consignment has been detained but no notice under section 32(3) has been issued in respect thereof.
6. We have examined the contentions 'with reference to the provisions of Customs Act once the consignment is cleared duty has been paid and the goods are out of charge the same cannot be detained against any sum due as duty, penalty or other charges unless same. Has been adjudged, and notice under section 202 of Customs Act, has been served.
7. In the present case respondents candidly conceded that neither amount has been adjudged against the petitioner in respect of show-cause notices nor the notice under section 202 till date has been served, In such circumstances, the action of the respondent in detaining subject consignment is declared without lawful authority and without jurisdiction. Consequently, petition is allowed and the respondents are directed to release the subject consignment forthwith.
8. However, the department may initiate any action according to law.