' Through the instant petition, the Petitioner has challenged the show-cause notice dated 12.10.2012, issued by the Deputy Collector Customs (EPZ), in terms whereof the Petitioner has been called upon to show-cause as to why the contravening goods, being pickles and james of salted flavour bearing the logo "Ahmed" should not be confiscated and penal action should not be taken against the Petitioner.
2. Mr. Sami Ahsan, the learned counsel for the Petitioner submits that there is no denying the fact that the, logo and trade mark "Ahmed" belongs to Ahmed Foods (Pvt.) Ltd., the Respondent No, 5, however, it is under a No Objection/Authority Letter, issued by the Respondent NO, 5, way back on 23.01.1997, being Annexure A/11A to the petition (at page 95 of the Court file), that the Petitioner is and has been exporting the above goods under the logo and trade mark "Ahmed". The learned counsel further submits that though in terms of Section 15(c) of the Customs Act, 1969, no good can either be brought into or taken out of Pakistan whereon a counterfeit trade mark is applied within the meaning of Pakistan Penal Code, 1860 or a false trade description within the meaning of Copyrights Ordinance, 1962 is applied and that it is only under the provisions of Section 15 of the Custcms Act, 1969 that the Customs can act in respect of contravention of the aforesaid bar imposed thereby. However, though admittedly the logo and trade mark "Ahmed" belongs to Respondent No, 5, but such is being used by the Petitioner under the above authority since last 16 years. In order to substantiate his claim of making export under the above logo and trade mark "Ahmed" by the Petitioner, the learned counsel refers to an Undertaking furnished by the Petitioner to the Deputy Collector Customs (EPZ), Karachi, which Undertaking enumerates seven (7) different consignments of food stuff under various invoices of May, 2012. He submits that in view of the foregoing, the Customs Authorities have absolutely no power and authority to commence any proceedings against the Petitioner.
3. On the other hand, Mr. Faisal Kamal, learned-counsel for Respondent No, 5 submits that the Authority, relied upon by the Petitioner, has been revoked by Respondent No, 5 in June, 2012 and refers to the relevant extract from the Minutes of Meeting of the Board of Directors of the said date, whereby the Board has resolved to withdraw the association/ affiliation with Ahmed Foods International and Ahmed Import Export House with immediate effect.
4. Now the question that emerges before us is as to whether the use of the subject logo and trade mark by the Petitioner can be deemed to be a use of a counterfeit logo and trade mark, however, it was under the Authority of Respondent No, 5 that the Petitioner exported number of consignments in the year-2012, as noted above, and has according to him, obtained several orders for export of such material with the logo and trade mark "Ahmed" for future also and two such consignments are lying for export since August, 2012, as is evident from Goods Declaration dated 15.09.2012, photocopies whereof have been filed by the Petitioner under cover of his statement dated 16.10.2012.
5. As regards the withdrawal of association/affiliation, as relied upon by the Respondent No, 5, the learned counsel for the Petitioner submits that in the first place, such withdrawal does not specifically pertains to the withdrawal of authority to export under the subject logo and trade mark and secondly, a suit bearing Suit No, 1458/2011, filed by the Respondent No, 5 is pending adjudication before this Court, through which suit the Directors of the Respondent No, 5 have, inter alia, sought the following reliefs in respect of the said Respondent, being Defendant No, 3, therein:
(I) To hold and declare that precluding plaintiffs from participating in the management of the affairs of Defendant No, 3 is unlawful and void ab-initio.
(II) Through mandatory injunction, direct the defendants to allow the plaintiffs to participate in the management of affairs of defendant No, 3 as its directors and share-holders.
(III) Permanently restrain the defendants, their officers, employees, subordinates and any person claiming through or under them from acting prejudicial to the interest of defendant. No, 3 and plaintiffs in any manner whatsoever.
(IV) Permanently restrain the defendants: their officers, employees, subordinates and any person claiming through or under them from taking any decision unilaterally and in an arbitrary manner without the approval of the majority share-holders of the defendant No, 3 and in particular restrain the defendants from communicating disseminating any information, correspondence, inter office memo, etc. Which is against the interest of plaintiffs and damaging to the interest of defendant No, 3 and impedes its smooth business operation in any manner whatsoever.
(V) To appoint official assignee or any other person as Receiver to take over the associated undertakings of defendant No, 3, viz. Ahmed Foods International and Ahmed Import and Export House, with the powers to appoint expert person for managing the said Associate Undertakings/entities in a beneficial and viable manner.
(VI) Award damages to the tune of Rs, 100 million against the defendants No, 1 and 2 jointly and severally.
6. Mr. Sarni Ahsan submits that withdrawal itself is illegal and unauthorised and the estion as to who should hold and control the Respondent No, '5 Company is yet to be decided by the Court, which contention is vehemently controverted by Mr. Faisal Kamal, who submits that in their written statement the Petitioner have admitted their share-holding to a mere 7.26%, and that admittedly Mr. Najamuddin Zia under whose chairmanship the meeting dated 09.06.2012 was held, wherein the aforesaid resolution was passed, is the Chairman of the Company.
7. Be that as it may, since the prayer, as noted above, is with regard to the management of the company, we would refrain from delving into such question. Since admittedly the various consignments under the subject logo and trade mark "Ahmed" were exported by the Petitioner under the Authority from Respondent No, 5 and since according to the Petitioner, commitments for export of subject consignments were made by the Petitioner on the faith of the above Authority, the question as to whether the Authority has in fact been revoked and if so, has it been revoked lawfully and validly, cannot be looked into by the Customs Authorities and thus the Customs Authorities cannot, at this point in time, say that the Petitioner is counterfeit logo and trade mark, as alleged.
We would, in the circumstances, direct the Customs Authorities to instantly withdraw the impugned show-cause notice, allow the Petitioner to export the subject consignments, however, such permission shall only be granted after the Petitioner has obtained a valid certificate/clearance/NOC from the concerned Health/Food Department regarding the fitness of the food items for export. We would also direct the parties to seek an order with regard to the proprietary and validity of the subject Authority from a competent Court of law, perhaps such question can be lawfully and properly dealt with in Suit No, 1458/2011, where the parties may move an appropriate application. The Petitioner in case they have obtained orders for future exports and made commitments in that regard on the basis/faith of the subject Authority, also may apply for appropriate orders in the said suit or may file a fresh suit, if so advised. The Respondent No, 5 may also file a fresh suit with regard to the above questions, if found necessary and are so advised.
8. At this point, Mr. Faisal Kamal submits a photocopy of an order passed by the Registrar, Copyrights declaring the subject logo as a property of Respondent No, 5, and further that such is being used without license/authorisation from Respondent No, 5 and directing that the subject consignments be confiscated and be not released for export. However, in view of the foregoing discussion, we are of the view that the Registrar, Copyrights was neither competent nor had he jurisdiction to pass the order, placed before us, and has no bearing on the instant proceedings.
9. At the request of Mr. Faisal 'Kamal' learned counsel for Respondent No, 5, the operation of the instant order is suspended upto 07.06.2013 to enable the Respondent No, 5 to approach the Hon'ble Supreme Court.
10. The petition alongwith the pending applications stands disposed of in the foregoing terms.