FINDINGS /DECISION The complainants have stated that they had imported 500/MT RBD Palm Oil vide IGM, dated 16-7- 2003. On arrival of the vessel, it was noted that as per "Ullage Report" the quantity on board was in excess of the quantity mentioned in bill of lading. They paid the duty and taxes as per quantity in the bill of lading. After the discharging of the oil it was discovered that contrary to the "Ullage Report", the actual quantity was short of the quantity mentioned in the bill of lading. However, the Customs Authorities at Port Qasim detained 4/MT of the consignment on the ground that the quantity on board was in excess whereas there was no excess quantity and, in fact, there was short receipt of goods.
2. The complainants have alleged that they had requested the Assistant Collector of Customs to release the detained goods following the judgment of the Sindh High Court in Fatima Enterprises v.
Government of Pakistan and others but had received no response. The complainants have submitted that they were ready to pay the duty and taxes for the quantity if found in excess in store tanks and requested that the Assistant Collector of Customs Port Qasim be directed to release the detained goods and any other relief deemed fit and proper be allowed.
3. The Additional Collector of Customs in reply to the complaint raised preliminary objections that:- -
(a) Since the matter related to determination of liability of duty under the Customs Act, the matter did not fall within the jurisdiction of this office under clause (b) of section 9(2) of the Ordinance No, XXXV of 2000.
(a) As a Civil Petition for leave to appeal against the judgment of the Sindh High Court has been filed before the Supreme Court, the complaint did not fall within the jurisdiction of this office.
4. It was pleased by the respondents that at the time of physical examination the quantity was found 503.2 MT against the declared quantity of 500 MT. The consignment of the complainants was part of the several consignments and on-board examination revealed excess quantity in each of the three parcels of Palm Oil products comprising 48 consignments of various importers. Since the complainants consignment was one of the. 15 consignments of commingled goods, the excess quantity was proportionately divided among all the 15 consignments.
5. It was further pleaded that under subsection (1) of section 80 of the Customs Act, the assessm ent of duty was to be made on quantity ascertained at "on-board examination". This subsection explicitly provided that duty should be assessed on goods prior to their clearance for home consumption or warehousing. Reference was made to instructions vide letters, dated 11-3- 1989 and 7-3-1002 and it was submitted that any variation in quantity at warehouse did not affect the quantity ascertained on-board the ship. It was alleged that the complainants had filed two ex- bond goods declaration splitting the consignment in two parts of 250 MT each without including the excess quantity. Therefore 2 MT goods were detained from each consignment. There was excess quantity which was accepted by the ship authorities, surveyors and all others importers who had paid duty and taxes on their consignments without any complaint. The complainants have relied on the judgment of the Sindh High Court against which an appeal has already been filed in Supreme Court. It was requested that the complaint be dismissed and direction given to the complainants to pay the Government revenues on the excess quantity.
6. At the hearing of the complaint, Mr. Naveed Ahmad Khan, Advocate, submitted copy of the Survey Report and invited attention to the fact that the quantity of 7015.590 MT Palm Oil was loaded on the ship but according to ullage report the quantity was found to be 7044.744 MT. He contended that the quantity which was transferred to the,shore terminal, and which was determined jointly with the customs officills, was the right quantity for assessment because that was the quantity which was released to the importer. The learned Advocate submitted shore terminal tank certificate,. Dated 18-5-2004, which showed the quantity according to the bill of lading, the landed quantity, the quantity which was delivered, and the balance quantity available in the tank.
7. The learned Advocate contended that the importer was concerned with the quantity which was delivered to him on payment of duty after discharge from the vessel and stored in the bonded tank. With regard to the contention of the Department relating to, subsection (1) of section 80 of the Customs Act, the learned Advocate stated that C.B.R. Letter, dated 11-3-1989 had mentioned about the landing of bulk liquid cargo and asserted that the landed quantity was the crucial factor for assessm ent of duty and taxes on goods released to the importer. The Principal Appraiser stated that the implementation of the High Court's judgment has been stayed by the Supreme Court. He stated that according to the procedure operated by the Oil Section, the crucial quantity for assessm ent was the one determined on-board the vessel and tolerance of plus/minus 0.25% only was allowed.
8. The detention of 4 MT Palm Oil has been made by the Department on the plea that the quantity of Oil according to the Ullage Report was 504 MT and the importer was liable to pay duty on this quantity. The complainants have approached this office against the anomalous and discriminatory attitude of the Department. The complaint does not involve the mechanics of the assessm ent of duty and taxes or the determination of their components for calculation of tax liability. It is E aimed against the manner in which the Customs Authorities have charged full duty but detained a small part of the quantity. The objections raised by the Respondent regarding jurisdiction are, therefore, irrelevant and misconceived.
9. The main question for consideration is whether the duty should be assessed on quantity delivered to the complainant in terms of bill of lading or on the basis of the quantity as mentioned in the ullage report. According to the learned counsel for the complainants it will be liable only for such quantity, which is delivered according to the bill of lading. In this regard the bill of lading and the shore terminal tank certificate may be referred from which the quantity shifted, landed and delivered can be ascertained. In this regard reliance has been placed by the Department on section 80 of the Customs Act. However, in similar F circumstances the High Court in judgment referred above (Messrs Fatima Enterprises Limited v. Government of Pakistan) held that "demanding customs duty on extra quantity of RBD Palm Oil on the basis of the quantity found in the tank on-board the vessel at the port of landing cannot be justified and cannot be sustained".
"The demand of . Further customs duty on the consignment of RED Palm Oil as per quantity found in the tank on-board the vessel at port of destination is not in accordance with the law as well as contrary to the established practice relating to the discharge of the liquid consignment". The respondents have filed appeal against this judgment before the Supreme Court. It has been pointed out by the learned representative for the respondents that the Supreme Court has stayed the said judgment but no stay order has been produced. So long the said judgment of the High Court is not set aside, it will rule the field and therefore, decision in this regard may be made subject to the final decision by the Supreme Court.
10. The objection that the matter is sub judice is not tenable. A matter is sub judice between the parties when the dispute is between the same parties. Here the matter/judgment referred is not between the same parties but the importer is a different person. In the circumstances the matter cannot be treated as sub judice between parties. Filing of appeal against the judgment of any Court cited as precedent does not make the matter sub judice between the parties who are not parties to it.
11. In view of the aforesaid stated discussion the action taken and demand made by the respondent being contrary to law, arbitrary and without any basis, there is no valid reason or bona fide to make such demand. Maladministration is established. Considering the facts and circumstances of the case and to maintain the balance between the parties, it is recommended that:-
(1) C.B.R. To direct the Collector to release the detained quantity of RBD Palm Oil against suitable guarantee, subject to the decision of the Supreme Court in the case of (Messrs Fatima Enterprises Limited).
(ii) Compliance be reported within 30 days.