ORDER AMIR HANI MUSLIM, J.- Through this petition the petitioner has prayed for the following reliefs:-- "(A) Declare that the officers of the respondents Nos. 2 and 3 have no lawful authority or jurisdiction to interfere with the consignments/containers meant for transshipment under the Customs Act, 1969.
(B) Declare that detention/seizure of the petitioner's Containers No. OOLU 8075390 and MLCU9303341 for which Transshipment Permits Nos. KPQI, TP-7419 and KPQI, TP- 7420 were issued by the appropriate officer of Collectorate of Customs (Port Qasim), by the Officer:; of the respondents Nos. 2 and 3 was in violation of the Customs Rules, 2001 and arbitrary, illegal, mala fide without jurisdiction or any lawful authority whatsoever.
(C) Declare that all subsequent actions taken by the respondents on the basis of illegal detention/seizure of petitioner's containers are also illegal, void and without any lawful authority or consequence whatsoever and liable to be quashed.
(D) Direct the respondents to immediately release the petitioner's Container No. OOLU5666975 for which bill of entry has been presented while the parties are that the petitioner. Muhammad Sarwar, claims to be proprietor of Imperial Sources, Lahore and is engaged in the business of import. The petitioner further claims to have imported a consignment consisting of old/used clothes, clothes (shoe lining), scrap printed directories, cling films, sofa clothes (velveteen), assorted toiletries, etc. Through Orient Overseas Container Line in three different Containers bearing Nos. OOLU5666975, OOLU8075390 and MLCU9303341. Three bills of lading of aforesaid three containers were manifested on 8.3.2004 vide IGM No. 145 of 2004 by the carrier which were duly approved by the concerned officer of the Customs. The petitioner claims that on 16.3.2004 he had filed a Bill of Entry at Port Qasim in regard to the Container No. OOLU5666975 containing used/old clothes for release of the same upon which customs duty and other charges were assessed, which the petitioner claims to have duly paid.
3. Insofar as remaining two containers were concerned, they were to be transshipped to Sialkot Dry Port, Sialkot. On 16.3.2004 the Licensed Bonded Carrier namely Messrs Sialkot Dry Port Trust, Sialkot, presented a request to the concerned officer of Collectorate of Customs (Port Qasim) for a transshipment permit for the aforesaid 1292 C.L. Pakistan Company & Tax Law Reports (P.C.T.L.R.) Vol. X remaining two containers which permits were accordingly granted by 1he;appropriate authority, a; rn,
4. For the petitioner vi/hile the three containers were inside the premises of Port Qasim, the officers of the respondent No. 2 unlawfully entered the premises of the Port on '16.3.2004 and illegally - Seized all the three containers belonging to the petitioner besides the documents including the transshipment permits 9and bills of entry^The petitioner further pleads that no notice either before or after seizure of the containers was given to the petitioner. The three containers were given in custody of the QICT vide detention gotice issued by thp respondent No. 3ob- isw 5 ^>6! :Thei petitioner approached the respondent Nd. 3 and pointed out that the containers had illegally been seized The officers of respondent No. 3 on refusal of the petitioner to privately settle the matter, 0n 26.3.2004 lodged F I R No. App-06/DC/2004' under Sections 2(s), 16, 32(1) and (2), 121 ami v 179 of the Customs Act, 1969. The petitioner claimed that, in law) the respondent No. 2 had neither jurisdiction nor authority to seize the containers bflhe petitioner at Port Qasim and hence the Notice-Issued by the officers of the respondent No. 2 is sought to be declared as without jurisdiction.
1 *6. in ^il/pport$ie petition, the learnec|^o^MnseJ for the petitioner has submitted that jurisdiction of the respondent No. 2 has been conferred by Notification No. S.R.O. 388(l)/82,^dated 22.4.1982. Thebsaicl S,R.On has been issued' by the Federal, Government in exercise of powers under Sections 3 and 4 of the Customs Act, 1969. it has been submitted that the respondent NO. 2 can exercise its jurisdiction Jn respect ofthe provisions of Sections 48- 62, 91, 92', 139^ 158; 159, 160, 161, 162; 164; 165P166, 167^ 168(1 )(3) and (4), 171, 175, 198 and 199. Additionally that provisions of Sections 22 and 121 of the Customs Act, viz., regarding search andrseizure are excluded under the said SRO. The learned counsel submits that the respondent No. P.C.T.LR. {FCB419C8-8860-471E-9E6A-7C04E0F75154}* {C0897529-8A68-4F70-867C-DA387B9414AE}{037FFFF6-4895-4270-BCD2-AA0DB4753754} {1330F9F8-3400-4F0E-B74E-BD857959AADA}{3643053F-4D57-470A-BE41-CF0D849731F3} counsel that the jurisdiction of the Appraisement Collectorate r is conferred upon them pursuant to the Notification No. S.R.O. 431(l)(98) issued on 30.4.1998, which is reproduced hereunder:-- 4 Superintendents of Intelligence and Investigation (Customs and Excise) Sections 26, 48, 60, 62, 91, 92, 139, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168(1 )(3) and (4), 171, 174, 175, 198 and 199. 5.
Assistant Director of Intelligence and Investigation (Customs and Excise) Sections 26, 48, 60, 62, 91, 92, 139, 158, 159, 160, 161, 162, 164, 165, 166, 167, 168( 1 )(3) and (4), 171, 174, 175, 198 and 199.
6. Deputy Director of Intelligence and Investigation (Customs and Excise) Sections 26, 48, 60, 62, 91, 92, 139, 157(2), 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168(1 )(3) and (4), 171, 174, 175, 198 and 199.
7. Director of Intelligence and Investigation (Customs and Excise) Sections 26, 48, 60, 62, 91, 92, 139, 157(2), 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168(1)(3) and (4), 171, 174, 175, 198 and 199. 7. it has been contended by the petitioner's "Appointment of officers of customs and Specification of their jurisdiction.
Notification No. S.R.O. 431(l)/98, dated 30th April, 1998. -- in exercise of powers conferred by Section 3 of the Customs Act, 1969 (IV of 1969), and in suppression of its Notification No. S.R.O. 95(l)/83, dated 12th February, 1983, the Central Board of Revenue is pleased to appoint:-
(1) the officers specified in column (2) of the Schedule below to be the Collectors of Customs for the areas specified in the corresponding column (3) thereof; and
(2) the Additional Collectors, the Deputy Collectors, Assistant Collectors, Principal Appraisers, Appraisers, Superintendents, Deputy Superintendents, Inspectors of Preventive Service and Preventive Officers, Examiners, Inspectors and Officers of Ministerial Department, in the respective Customs Houses and the Collectorates to be officers of customs for those areas.
SCHEDULE S. No. Designations of Officers Area of jurisdictions
1. Collector of Customs (Appraisement), Customs House, Karachi. All matters relating to Customs House in the Civil Division of Karachi, the Port of Karachi and the Pakistan Customs Waters except the work relating to the Collectorates of Customs (Preventive), (Exports), (Examination) and Port Muhammad Bib Qasim.
2. Collector of Customs (Examination), Customs House, Karachi. All matters relating to examination of both imports and exports in the Civil Division of Karachi and the Port of Karachi but excluding Port Muhammad Bin Qasim, All transit goods, bulk oil imports, supervision of bonded warehouses in the Civil Division of Karachi and transshipment of goods to other Customs House.
3. Collector of Customs (Preventive), Customs House, Karachi. All matters relating to the following in the Civil Division of Karachi, the Port of Karachi, Ibrahim Hydry, the Pakistan Customs Water, Quaid-e-Azam International Airport, Karachi, Shahrah- e-Faisal Airbase, Karachi, Masoor Airbase, Karachi, Lasbella District and Thatta District. {95AF5549-9214-42D1-A1B9-4421B6E5A7B2}{84DD73DB-EAA4-4311-A939-FD32B5D3C9FE} {8A080AD9-6307-4028-B0C4-90D51DE94C43}{924BB54F-30AC-4BF2-B49F-3F6E1E15284F} {F6DA8456-D6E2-40AA-9D1C-44C412B5EA07}{63EFC01D-592A-4479-98E8-598B4BC0DF8B} {298A0F0F-7954-4FBC-8777-8DF77CC9A57D}{B0FE5123-97AA-44B3-AC9B-651243ED7EB2} {C28A59B1-8282-42BF-994D-27301D3AAA78}{6E5CB1CD-2123-488C-B9D0-8EC581E33FF3} {93F149DC-3FF3-4289-9C04-458250E9B4B1}{34D52640-664E-4E18-A7C4-FE59AC70B10D} {AD7E7FA9-E9BA-4315-8C01-6CA8C093B682}{D4522665-6BFC-47F0-8801-60B8BA9D71F5} {1563D752-9C7B-4A93-9632-3BD0AA277584}{DB37E19C-28ED-4A4D-A3FB-A8C4CF4A77DD} {19DBD280-C6D9-47A9-BDE0-61658C98FF07}{6372CD81-42F6-484F-ABA5-B4C7B5C4DF63} {F0BA9426-1FC4-4FB1-AD87-4C7E78AF776E}{CD57D846-FAF7-4E7D-B3B9-2E6A2775FF3D} {56BF41F6-2214-4BA7-9543-EE9707BA5C0D}{8F3D8ACC-CA4A-4C54-8929-D8177BA1B5C2} {37D10A93-7DD3-469A-BFA4-249E12AF1ED9}{12883046-6D92-49C8-BADD-9B255E11AF05} {32789F49-7F47-42F7-99ED-A2C5E1697DA0}{65ACF1A3-8EF9-43D4-8DC2-89EB4E94C4F9} {50151614-759D-433E-B978-4C2A3FE64DDA}{576AEB02-1E1B-45DC-877C-502B8784F0DE} {326940FE-A0D9-4695-864D-1EFB29FF8AAF}{A6221760-0F4A-4914-8BDE-65529800D94F} {FC25C614-24AE-4318-BEA9-E908784DE61B} the challan in the Trial Court were unauthorized as neither the law nor any rule authorized the respondents Nos. 2 and 3 to take cognizance of the matter against the petitioner, as the alleged act of mis-declaration falls within the jurisdiction of Appraisement Collectorate.
11. He has also relied upon an unreported judgment of this Cou1 given by a Division Bench in the case of Messrs Haris Trading International and another v. Director Intelligence and Investigation (Customs and Excise), Karachi and 4 others passec on 16.3.2004 in Constitution Petitions Nos. D- 1512 and 1513 of 2003 and in the case of Shahzad Ahmed Corporation \,. Federation of Pakistan and two others passed on 7.9.2004 in Constitution Petition No. D-817 of 2004 and submitted that his case was fully covered by the aforesaid judgment where the learned Judges have held that the jurisdiction of respondent No. 2 was confined to the provisions of Customs Act mentioned in the S.R.O. No. 388(l)/82. He further submits that in the said judgment it has been held in the aloresaid cases that cognizance of misdeclaration coujd only be taken by the Collector of Customs Appraisement and not by the respondent No. 2. He has also relied upon the case of Mazhar Iqbal v.
Collector of Customs (2004 PTD 2994).
12. As against this, Syed Tariq Ali, the learned Standing Counsel lias argued that Section 161 of the; Customs Act as mentioned under the S.R.O, confer jurisdiction upon 1he respondent No. 2 to take cognizance of any offence mentioned in the Customs Act. He submits that mis-declaration itsell is an offence and is covered under Section 161 and the; respondent No. 2 was competent to take action against the petitioner.
13. Mr. Shafi Muhammad learned counsel for respondent No. 2 has submitted that the action of respondent No. 2 was not outside the jurisdiction of Customs law and since the challan has .Been submitted pursuant to the F.I.R, registered by the respondent No. 2 on 26.3.2004, therefore, all these issues could be raised before the very Court in which the case was pending trial.
14. We have heard the learned counsel and have perused the record, it would be seen that Section 3 of the Customs Act authorizes the Central Board of Revenue to appoint officers of Customs whereas Section 4 thereof authorizes it to delegate powers and duties to the Customs Officers appointed under Section 3. Pursuant to the aforesaid provisions of the Customs Act the Central Board of Revenue has issued S.R.O, dated 22.4.1982, reproduced herein-above, notifying the powers and duties of the respondent No. 2. Under the said S.R.O, the respondent No. 2 is authorized to take cognizance, exercise powers and discharge duties as contained therein. The notification, however, does not include Sections 16, 18, 25, 32(1) and (2), 79 and 83 of the Customs Act.
15. The S.R.O. No. 431(1) of 1998, issued on 30.4.1998 under Section 3, by the Central Board of Revenue, speaks of the officers appointed under the Customs Act, besides their specific jurisdiction. The learned' counsel for the petitioner has submitted that Collector of Customs, Port Qasim, was authorized-to adjudicate upon all matters relating to import, export and examination of goods in Port Qasim. According to the learned counsel for the petitioner, under the S.R.O, dated 22.4.1982 jurisdiction of respondent No. 2 was confined to the provisions of Customs Act, mentioned therein
16. The further arguments of the learned counsel for the petitioner was that as the two containers were under transshipment to Sialkot Dry Port, in terms of Rule 335(4) of the Customs Rules, 2001 framed under Section 219 of the Customs Act, 1969, 100% weighing and 2% random physical examination could be ordered by the Collector of Customs of suspectesd consignment at the Port of shipment in presence of bonded carrier and in case of mis-declaration of description or weight, "action under the provisions of Customs Act could be initiated. The learned counsel submits that under no circumstances goods under transshipment could be detained and or seized by the respondent No. 2.
17. The contention of the petitioner's counsel that the respondent No. 2 did hot have jurisdiction either to sei2 or to issue notice under the provisions of Section 171 of the Customs Act, inter alia, on the ground that such authority is not even9 vested with the Collector of the Port of Transshipment and it was only the Collector of Port tp dis^^hg^j!^1^'..Obukl' have taken note of such alleged mis " declaration, is hot without force. According to learned counsel for the petitioner Chapter XII of the Custom^ Act^ deals Withctiie transshipment arid Section 121 of the saidr Chapter was the' relevant provisions, which have been violated by the respondent No. 2. For the sake of convenience, the relevant rule Js being reproduced hereunder:- J" "Rule 335ofCustoms Rules, 200I c
335. Clearance of goods from Port. - (1) The authorized representative after completing io io o: formalities relating to the port area and on^ !Rj payment of all the dues or charges to the concerned department shall take the ori! .Transshipment permit to the concerned shed or o: plot of tle container operator for taking delivery of the consignment.
(2) The carrier shall ensure that no goods having marks and numbers or packages etc., different from once indicated I in the Transshipment Permit and Manifest are loaded for transshipment, in case of any discrepancy, the , carrier shall report this matter to the concerned t ioC' Assistant Collector for further orders.
(3) All conveyance carrying transshipment goods shall invariably be weighed at the Port weigh- ;Q citJi, .; : P.C.T.LR.
Bridge and the report of the same be provided in carrier manifest and weight slip be attached with the carrier's manifest, in case there is plus variation upto five percent^ or five hundred kilograms whichever is less, in the declared weight and the ascertained weight, he; transshipment may be allowed subject to thb satisfaction of Collector.
(4) Hundred percent weighing and two percent random physical examination to be ordered by Collector of Customs of suspected consignments at the port of transshipment in presence of bonded carrier be allowed and in case of mis-deciaration of description or weight, warranted action be initiated. . * A careful reading of the afdresaid notifications rtotrfyirtg the powers and duties Of the respondent No. 2 clearly reflect that the legislature never intended to authorize respondent No. 2 to exercise their powers under the different provisions of the Customs Adt, mentioned in the impugned notice under Section 171 issued by them to the petitioner The provisions of the Customs Act, mentioned in the impughed notice do not find any piabe in the referred S.R.O., Which confers jurisdiction upon respondent No. 2. Mere detection ,of misdeclaration does not authorize the respondent No. 2 either to seize or to register any criminal case against any party but at best they could bring it to the notice of toe concerned Collectorate of the port as and when such violation comes to the notice of the respondents. The respondent No. 2 has erroneously exercised its jurisdiction to issue notice under Section,',174 by seizing the containers instead of transmitting such information to the Collector of Port Qasim, who was the competent officer to exercise jurisdiction as provided under the Act, What is most unfortunate is that the respondent No. 2 had registered the case and submitted the challan, which again falls outside their jurisdiction as such action should have been taken by the concerned Collectorate. On account of these unwarranted actions of the respondents Nos. 2 and 3 the petitioner has been prejudiced. The officials of the respondent No. 2 could not encroach upon the powers and duties of the other Collectorate under the garb of Section 161. The ultimate result would be that the Government would be at loss, as such unwarranted action would definitely affect the public exchequer, in future, we direct the officers of respondent No. 2 to stay their hands from taking cognizance under a provision of the Customs Act and or exercising any power in respect of any provision of Customs Act, which is not notified under the S.R.O, of 1982, however, if they receive any information, they should pass it on to the concerned Collectorate for their action. Apparently, till date the officers of respondent No. 2 were exercising all the powers under the Customs Act by encroaching upon the authority of the other Collectorates, which is against the spirit of the law. Every authority, in law, has its own jurisdiction and no one whosoever it may be, can exceed its limits. We are also not persuaded by the argument of the learned counsel for the petitioner that the action of mis-declaration even by the competent Collectorate was premature as the petitioner did not file a bill of entry, which was required to be filed before the port of discharge and interception at the port of transshipment would not entail any consequence.
18. With profound respect to the learned counsel for the petitioner, we are not persuaded by this argument. Mere non-filing of the bill of entry before the port of discharge by the petitioner in the present case when the consignment has been intercepted and the description of the consignment was found different from the documents of the export and IGM which the petitioner has filed at the port of transshipment, would not give license to the petitioner to take advantage of his wrongful acts, in such cases, the contents of the IGM could be equated to the contents of Bill of Entry for the purposes of determining any mis-declaration. We are satisfied that the Collector, Port Qasim was duty bound to take cognizance of the mis-declaration at the port of transshipment once such discrepancy in the contents of IGm with the contents of the consignment has surfaced and has been brought to his notice.
19. We are also in respectful agreement with conclusion reached by the Honourable Judges in the unreported judgments of Division Benches in the cases of Messrs Haris Trading International and another v. Director Intelligence and Investigation (Customs and Excise), Karachi and 4 others passed on 16.3.2004 in Constitution Petitions Nos. D-1512 and 1513 of 2003 and Shahzad Ahmed Corporation v. Federation of Pakistan and 2 others passed on 7.9.2004 in Constitution Petition No. D-817 of 2004. Such conclusions were that in the circumstances of the case the respondents viz. Customs Intelligence Directorate had no jurisdiction to seize duty paid goods as this did not fall within the ambit of their powers as per the notification in question. in the result the goods were directed to be handed back to the petitioners while observing that the matter may be referred to the concerned Collectorate for necessary action regarding evasion of duty etc.
20. in the present proceedings one of the containers on which duty was paid, was intercepted afterwards by the respondents Nos. 2 and 3 and which was not the subject-matter of transshipment. This shall be released immediately to the petitioner, subject, however, to any action to be taken by the Port Qasim Collectorate for mis-declaration or evasion of customs duty, if any, in accordance with law. The impugned notice issued by the respondent No. 2 is declared to be without lawful authority.
21. The other two containers, which are also in custody of the respondent No. 2 and were to be P.C.T.L.R. {F7915F1F-418D-4205-8E0E-D7633E0F3794}{8B292C5B-494C-40E8-BB9B-BAC61987B4BB} {774C5967-91D5-45FA-AA7B-9C7C34715BCD}{EEB37575-1EDB-4C89-841E-91F0D46D5D1E} {DD475446-A097-4E0B-BD7C-C209B2876C3A} 2005 Singer Pakistan Ltd. V. Govt, of Pakistan C.L. 1305 (Khilji Arif Hussain, J)