ORDER IJAZ-UL-AHSAN, J. - The petitioner imported certain goods from China through the Sost Border. Forty Bills of Entry were filed with the Superintendent of Customs at the Sost Border, which were duly stamped by him for conformation of the fact that he had found them to be in order. Subsequently, the goods were allegedly unpacked at Rawalpindi and thereafter they were sent to Lahore for the purpose of storage. The Anti-Smuggling Staff of respondent No. 2 seized those goods on the allegation that the same had been smuggled. A show-cause notice dated 8.3.2004 was issued to the petitioner which was responded to. Vide Order-ln-Original dated 13.11.2006, the response to the show cause notice having been found unsatisfactory, the same was rejected and the goods were ordered to be confiscated. The aforesaid Order-ln-Original was challenged in appeal before the Collector of Customs. The appeal was dismissed on 23.6.2007. The order of Collector was challenged before Customs Appellate Tribunal. The Appellate Tribunal dismissed the appeal vide order dated 21.11.2007. The order of the Appellate Tribunal was challenged before this Court. This Court was pleased to remand the case to the Appellate Tribunal for decision afresh. In the second round, the Appellate Tribunal allowed the appeal filed by the petitioner on the ground that the show-cause notice issued to the petitioner under Section 168(2) of the Customs Act, 1969, being barred by time, the order of confiscation of goods was illegal. The Appellate Tribunal, therefore, directed that the. Confiscated goods returned immediately. The Department assailed the aforesaid order of the Appellate Tribunal by way of a Reference before this Court. The reference was dismissed vide order dated 3.11.2008. The order of dismissal of the reference was challaned by the Department before the Honourable Supreme Court of Pakistan by way of C.P. No. 1877-L of 2008.
Vide order dated 16.2.2009 with the consent of the learned counsel for the parties the following order was passed:- In view of the fair stand taken by learned counsel for the parties, this petition is converted into appeal and allowed and consequently the goods subject-matter of this appeal shall be cleared subject to payment of usual customs duties and taxes (underling is mine).
It appears that subsequent to. The aforesaid order the petitioner also filed, a review petition seeking clarification of the aforesaid order. The review petition did not find favour with the Honourable Supreme Court and was accordingly dismissed.
2. Pursuant to the order passed by the Honourable Supreme Court of Pakistan, the petitioner moved an application to the Customs Department seeking release of goods on payment of the duties and taxes as per the Orders of the Honourable Supreme Court of Pakistan. It appears that in the said application the petitioner claimed that he had already paid duties and taxes on some of the items and claimed credit for the same. He, however, undertook to pay the balance amount due and payable against the imported consignments.
3. The stance taken by the Customs Department appears to be that the entire amount of duties and taxes are payable on the entire consignment that has been confiscated by the Customs Department. This is the sole controversy which is the subject-matter of this petition.
4. The learned counsel for the petitioner has drawn my attention to paragraph-3 of the parawise comments filed by the Department before the Collector (Appeals), Customs, Sales Tax and Federal Excise Tax, Lahore. In the said paragraph it has categorically been admitted that the Department had scrutinized the Bills of Entry and the following goods were found to have been imported thereagainst. The word "thereagainst" referred to the following Bills of Entry:-
(i) B/E# 1015, dated 17.11.2003 (importer M/s. Pirzada Trading Co. Gilgit)
(ii) B/E# 1085, dated 21.11.2003 (Importer M/s. Universal Gateway Trading Corporation, Gilgit.
(ii) B/E #1180, dated 8.12.2003 (Importer M/s. Universal Gateway Trading Corporation, Gilgit).
In the said paragraph the Department also gave a list of the items which according to it were imported against the aforesaid Bill of Entry which for the sake of convenience and accuracy, is reproduced below:- Sr. No. Name of item PCT Heading Quantity B/E NO. 1015, DATED 17.11.2003 01 Jersies Medium H/S 6110:9000. 6450 Pcs 02- . Main Bearing 8409.9990 2000 Pcs 03 Valve' 8409.9990 2880 Pcs 04 Gasket 8409.9990 12000 Pcs 05 Baby Suits 6115.1000 1500 Suit 06 Jersey Jacket 6110.9000 550 Pcs 07 Baby Jersey H/S 6110.9000 5200 Pcs 08 Nozal 8409.9990 2400 Pcs 09 Canvas Shoes 6405.9010 3480 Pcs petitioner is entitled to the release of aforesaid goods. He submits that as regards any other goods which have been confiscated and are in possession of the Customs Department, the petitioner is ready and willing to pay the taxes and duties calculated by the Department against release of the said items. The list of the said goods has also been provided in the reply filed by the Department before the Collector of Customs which is reproduced for the purpose of convenience and accuracy:- S. No. Description of GOODS SEIZED QTY COVERED THROUGH B/E . EXCESS QTY
1. Bearings ' 8320 pairs 2000 pcs 14640 pcs
2. Cam Shafts 100 pcs Nil 100 pcs
3. Piston 5272 pcs 2880 pcs 2392 pcs
4. Ring set 8538 sets 2340 sets 6198 sets
5. Ladies Shawls 2990 pcs '2820. Pcs 170 pcs
6. The learned counsel for the Department submits that the Bill of Entry defined in Section 2(c) of the Customs Act, 1969, is defined as follows:- "bill of entry" means bill of entry delivered under Section 79 and includes electronic filing of bill of entry" (Omitted by act III/2006, dated 1.7.2006)
On the basis of the aforesaid definition he submits that Bill of Entry represents a list of goods and the claimant is only entitled to get those goods released which are mentioned in the Bill of Entry and which match those goods which are in his possession. He therefore argues that in view of the fact that the goods Which physically do not exactly match with the Bill of Entry submitted by the petitioner, he is not entitled to claim the aforesaid benefit. He further submits that the Bill of Entry produced by the petitioner does not relate to the petitioner and the possibility that they relate to other goods which have already been released, cannot be ruled out. He adds that it is not known whether the Bills of Entry have already been used to get the good released and the Bills of Entry now being presented are being utilized to avail of double benefit.
7. I have heard learned counsel for the parties and have also perused the record,
8. It is an admitted position that the Bills of Entry submitted by the petitioner at the time of confiscation of the goods were got verified by the Department from the Superintendent Customs Department at Sost who verified the same Further, in paragraph-3 of their parawise comments the Department categorically admitted before the Collector of Customs that B/E No 1015 dated 17.11.2003, B/E No. 1085, dated 21.11.2003 and B/E No. 1180, dated 18.12.2003 related to the goods details of which have been mentioned in the aforesaid paragraph. Further it is admitted that there were certain goods which did not exactly match with the aforesaid Bills of Entry which were confiscated and which have not been accounted for in the documentation provided by the petitioner, yet they were found in his possession.
9. The order passed by the Honourable Supreme Court was in the nature of a consent order in which the petitioner had undertaken to pay duties and taxes on the goods. He claims to have paid duties and taxes on goods detailed above which were imported against Bills of Entry Nos. 1015, 1085 and 1180 about which there is no dispute, ft is apparent that in case the petitioner is required to pay duties on the same goods again on which he has already paid duties and taxes as admitted by the Department, this would constitute a double burden of taxation which is not the intention of the law or the order of the Honourable Apex Court. In case a person has paid duties and taxes which are due and payable against goods imported by him, it would neither serve the purpose of law nor would it be just, equitable and fair to burden him with payment of duties and taxes again. As for the argument of the learned counsel for the department that the Bills of Entry submitted by the petitioners were in different names, and there was a possibility that the same bills may have been used twice, suffice it to say that this has been raised for the first time today. Further, the learned counsel has not been able to substantiate it with any material available on record. In this view of the matter, I direct the Department to release the goods imported against the aforesaid Bills of Entry details of which have already been given in the earlier part of this order after, verification of the fact that duties and taxes against the said goods have- in fact been paid by the petitioner in their entirety. So far as the five items which are unaccounted for' in the documents submitted by the petitioner as mentioned above are concerned, the petitioner will be entitled to get the same released on payment of the usual duties and taxes as calculated by the Department.
10. This petition is allowed in the aforesaid terms.