NAEEM AKHT AR AFGHAN, J . In the instant constitution petition, the petitioner has claimed the following relief: It is, therefore, prayed of this Hon'ble Court that the instant petition be allowed, and i. Declare that the impugned Seizure-cum-Contravention Report No. V-Seize/DCI/QA/57/2021 and No.V - Seiz/DCl/QA/58/2021, as well as the seizures pursuant to which the same have been issued, by the Respondent No.3 and its officers are unlawful illegal, mala fide and without any lawful jurisdiction. ii Declare that the impugned Valuation Report No.1031 of 2017 dated 02.02.2017 is unlawful, illegal and ultra vires the Customs Act, 1969, and the Customs Rules, 2001, and remains unfit for the purposes of assessment of any goods, including but not limited to Pistachios (both Shelled and Unshelled) of Iranian origin imported via land route. iii. Declare that the assessment of customs value of Pistachios (both Shelled and Unshelled) of Iranian origin imported via land route is liable to be carried out in terms of Section 25 of the Customs Act, 1969. iv. Declare that the impugned Valuation Ruling No.1031 of 2017 dated 02.02.2017 is not meant for the assessment of Pistachios (both Shelled and Unshelled) of Iranian origin imported via land route, confirmed by the letters, Orders and Directives issued by the Collector of Customs, Quetta and the Directorate General of Customs Valuation. v. Direct the respondents/their officers to immediately release and give to the possession of the petitioner the consignments bearing Goods Declarat ion No. QDR Y-HC-6865 dated 4.2.2021 and QDR Y-HC-6877 dated 4.2.2021, as well as the detained trucks upon which such consignments are laden. vi. Restrain the Respondents/their officers from taking any coercive action against the petitioner on the basis of the impugned Valuation Ruling No.1031 of 2017 dated 2.2.2017, the Seizure-cum-Contravention Report No. V- Seize/DCI/QA/57/2021 and No.V -Seize/DCl/QA/58/2021, or otherwise in the context of the instant case. vii. Grant any other relief deemed just and appropriate in the circumstances of the case. viii. Grant order as to the costs of the petition".
2. The petition has been contested by the respondents Nos.2 and 3 by filing joint parawise comments raising objections on the maintainability of the instant constitution petition and on the ground that adjudication proceedings have already commenced before Deputy Collector (Adjudication) Custom House, Quetta.
3. While supporting the petition, responde nt No.4 has also submitted parawise comments wherein respondent No.4 has contested the grounds agitated by respondents Nos.2 and 3 in their parawise comments.
4. Relevant facts of the case are that two consignments of Pistachios with shell (Iran origin) were imported via land route by the petitioner in respect whereof Goods Declaration ('GD') Form Nos. 6865 and 6877 were filled in for Customs clearance.
5. The GD No.6865 pertains to 1510 cartons of Pistachios with shell (Iran origin) weighing 15100 kg and 200 bags of Pistachios with shell (Iran origin) weighing 9960 kg while GD No.6877 pertains to Pistachios with shell (Iran origin) containing 2014 + 710 cartons total weighing 23146 kgs.
6. It reveals that the unit value of the above two consignments was declared by the petitioner in GDs as 1.00 US$ per kg and it was assessed by the Appraising Officer of the Collectorate of Custom s Quetta as 1.32 US$ per kg on the basis whereof leviable custom duty and taxes were paid by the petitioner .
7. After paying the leviable custom duty and taxes on the basis of 1.32 US$ per kg unit value of the imported consignments and before release of the consignments from NLC Dry Port Quetta, the same were seized by Directorate of Intelligence and Investigation Customs Quetta at NLC Dry Port Quetta vide seizure report dated 07.02.2021 bearing signature of Mr. Saleem Akhtar Jamali Intelligence Officer and Muhammad Zohaib Deputy Director for alleged contravention of sections 2(s), 15, 16, 18 and 32(1&2) of the Customs Act, 1969 (hereinafter "the Act") read with SRO 566(1)/2005 dated 06.06.2005, SRO 499(I)/2009 dated 13.06.200 9 read with section 3(1) of Import and Exports (Control) Act, 1950 punishable under clauses 8, 14 and 89 of section 156(1) of the Act with the allegations that: The petitioner in connivance with Custo ms Clearing Agent and Customs Apprai sing Staff MCC Quetta did not consider the valuation Ruling No.1031 of 2017 dated 02.02.2017 in letter and spat and has caused huge loss to Government revenue/national exchequer to the tune of Rs.2,501,037/- excluding the paid custom duty and taxes, Pistachios in shell has been declared and assessed at very low value, MCC Quetta issued letter dated 03.12.2016 for determination of value of some Iran origin commodities, Valuation Ruling No.1307 of 2017 is in field since February 2017 for determining value of Pistachios in shell, Vide amendment in Finance Bill of 2019, the power to determine valuation of the goods by the Collector (Collectorate of Customs) has been omitted in order to put an end to mala fide practices going on at different border Dry Ports.
8. After hearing learned counsel for the petitioner , Mr. Ikhlaq Ahmed Shah, Advocate representing the respondents, Rana Afsar Law Officer of Customs Department, Mr. Abid Hussain Additional Director Customs Intelligence and Investigation, Mr. Amjad Hussain Rajpar Deputy Director Customs Intelligence and Investigation, Ms. Eesha Rahim Assistant Director MCC (A&F) Quetta and Mr. Arshad. Zubair Superintendent MCC (A&F) Quetta, we have perused the available record and have gone through the relevant provisions of the Act as well as relevant Notifications and Valuation Rulings.
9. The Notification No.SRO 486(1)/2007 dated 09.06.2007 with Table, issued by Government of Pakistan (Revenue Division) Central Board of Revenue in exercise of powers conferred by 3(E) and 4 of the Act in supersession of Notification No.SRO.39(I) of. 2005 dated 06.01.2005, authorizes the Officers of the Directorate General, Intelligence and Investigation, Central Board of Revenue (Specified in column No.2 of the Table) to exercise powers and discharge the duties of the Officers of Customs under specific provisions of the Act the specified in column No.3 of the Table) and to invoke all the specified provisions within the Act and Rules made thereunder if so warranted within the area of their respective jurisdiction.
10. The above Notification does not authorize the Officers of the Directorate General, Intelligence and Investigation Central Board of Revenue to exercise powers under sections 2(s), 15, 16, 18 and 32 (1 and 2) and under clauses 8, 14 and 89 of section 156(1) of the Act on the basis whereof seizure report dated 07.02.2021 was prepared.
11. It reveals that in GD Nos.6865 and 6877, the petitioner declared the unit value of the imported Pistachios with shell (Iran origin) for paying custom duty and taxes as 1.00 US$ per kg.
In exercise of powers under section 80 of the Act, the Customs Appraisement Staff MCC Quetta assessed the unit value of the imported Pistachios with shell (Iran origin) for levying custom duty and taxes as 1.32 US$ per kg.
12. Section 25 of the Act deals with valuation of the imported consignments on case to case basis while section 25- A of the Act pertains to the valuation of the imported or exported goods as determin ed by the Directorate General of Customs V aluation.
13. According to Valuation Ruling No.1031 of 2017 dated 02.02.2017 issued by Government of Pakistan Directorate General of Customs Valuation, Custom House Karachi under section 25-A of the Act, Pistachios with shell of (Iran origin) has to be assessed for payment of Custom duty and taxes as 3.50 US$ per kg if imported by sea and if the same is imported by land route, 15% margin in value is admissible which makes the assessed unit value as 2.97 US$ per kg.
14. Admittedly , till 30.07.2019, Directorate General of Customs Valuation, Custom House Karachi as well as the Collector Customs in their respective Collectorate had the authority to issue Valuation Rulings under section 25-A of the Act.
In pursuance of powers conferred by section 25-A of the Act, keeping in view the hardships of the importers in Balochistan and after consultation with the Directorate General of Valuation, Custo m House Karachi, the Collector (Collectorate of Customs) Custom House Quttta issued Valuation Ruling dated 25.04.2017 whereby the unit value of the imported Pistachios for assessment of custom duty and taxes was assessed as 1.2 US$ per kg.
15. Vide amendment in Finance Bill of 2019, the power to issue Valuation Ruling for the imported/exported goods for assessment of custom duty and taxes by the Collectors (Collectorate of Customs) was omitted.
16. Vide order dated 16.04.2019, the Collector MCC (Appraisement) Custom House Quetta rescinded the Valuation Ruling dated 25.04.2017 issued by the Collector (Collectorate of Customs) Custom House Quetta with stipulation that new unit value for Pistachios imported via land route from Iran shall be decide d by the Directorate General of Customs Valuation, Custom House Karachi in consultation with all the stakeholders /importers of the said items in terms of section 25-A of the Act.
17. Instead of issuing directions to apply Valuation Ruling No.1031 of 2017 dated 02.02.2017 for the imported goods from Iran via land route, the Directorate General of Customs Valuation, Custom House Karachi wrote letter dated 17.04.2019 to the Collector of Customs (Appraisement) Quetta which reads as follows: "Subject: Assessment of goods imported via land route.
Please refer to MCC (Appraisement) Quetta's orders dated 16.04.2019 withdrawing Valuation Ruling pertaining to goods imported via land routes from Afghanistan and Iran.
2. A mechanism is being devised to determine values of such items by the Director of Valuation, Karachi in consultation with MCC (Appraisement) Quetta and the members of local Valuation Committee which is expected to become available in the near future. Meanwhile, it is advised to allow clearance of goods in terms of Section 25 of the Customs Act, 1969 (wherever applicable) including the use past 90 days data".
18. It reveals that despite writing letters dated 15.06.2019, 02.7.2019 and 04.01.2021, in exercise of powers conferred under section 25-A of the Act, the Directorate General of Customs Valuation, Custom House, Karachi has not yet determined the unit price of the Pistachios with shell (Iran origin) imported via land route and according to the above referred letter dated 17.04.2019 written by the Directorate General of Customs Valuation, Custom House Karachi, the clearance of goods imported from Afghanistan and Iran via land route has to be allowed in terms of section 25 of the Act including the use of past 90 days data.
19. In view of the above, the seizure of the imported consignments of Pistachio s with shell (Iran origin) of the petitioner by the Directorate of Intelligence and Investigation Custom House Quetta at NLC Dry Port Quetta in pursuance of Notification No.SRO.486(I)/ 2007 dated 09.06.2007 on the pretext of non-applying Valuation Ruling No.1031 of 2017 dated 02.02.2017 by the Customs Appraisement Staff MCC Quetta is held illegal and unwarranted.
20. In pursuance of Notification-. No.SRO 486(1)/2007 dated 09.06.2007, the officers of Directorate of Intelligence and Investigation Customs can intercept the goods which are liable to confiscation due to mis-declaration of description of goods or mis-declaration in respect of quality and quantity of the goods resulting in loss of revenue but they cannot intercept the goods due to non-application or wrong application of a Valuation Ruling as it is not within their domain and jurisdiction.
Reference in this regard is made to the case of Saadat Khan v . Federation of Pakistan, 2014 PTD 1615 .
21. If the officers of the Directorate of Intelligence and Investigation Customs have any information about wrong appraisal made by the staff of Customs Appraisement Department and are of the view that the appraisement officials are in collusion with the importer , they can pass on the information to the senior officers in the hierarchy of appraisement for the purpose of initiatin g proceedings under section 32 of the Act as the senior officers in the hierarchy of appraisement can exercise all the powers and discharge all the duties conferred or imposed upon any officer subordinate to them as provided under section 4 of the Act.
Reference in this regard is made to the judgment dated 30.04.2014 passed by Sindh High Court Karachi in the case of Shahzad Ahmed Corporation v. Federation of Pakistan , 2005 PTD 23, which has also been upheld by the Hon'ble Supreme Court vide order dated 31.01.2019 passed in Civil Appeal No.20/2015 which was filed by the Director , Directorate General of Intelligence and Investigation FBR, Karachi.
For the above reasons, the constitution petition is accepted. The IB seizure of Pistachios with shell (Iran origin) imported by the petitioner via land route from Iran vide GD No.6865 (1510 carto ns weighing 15100 kg plus 200 bags weighing 9960 kg) and GD No.6877 (2014 cartons plus 701 cartons total weighing 23146 kg) by the Directorate of Intelligence and Investigation, Custom House Quetta is declared void and of no legal effect. The respondents are directed to forthwith release the above imported consignments of Pistachios with shell (Iran origin) in respect whereof the leviable custom duty and taxes have, already been paid by the petitioner . The adjudication proceedings pending before Deputy Collector (Adjudication) Custom House Quetta are quashed.
The above are the reasons of our short order dated 22.03.2021.