' ALI NAWAZ BUDHANI, J.-The petitioner, by the instant Constitutional Petition has challenged the vires of circular, dated 13th January, 1983 issued by Assistant Collector of Customs requiring the letter of credit and original Jawaznama to be produced for Afghan Transit Goods. The petitioner is a trader in Kabul, engaged in the import and export business. The petitioner imported a consignment of 489 cartons of polyester Textured Yarn valued at Rs, 6,38,440 per s. s. Lilac Aco and filed a Bill of Entry, on 7th April, 1983 bearing Index No, 166, I. G. M. No, 200/83 alongwith the Afghan Invoice, Exporters Invoice, Bill of Lading, Original Jawaznama from the 'Da Afghanistan Bank' to the effect that the invoice was transferred abroad through banking channels in Afghanistan. True Photostat copies were annexed and the same were Annexures E, F, G, H and I. Customs Authorities, however, refused to transport the goods to Afghanistan unless a Latter of Credit, covering import of these goods was produced by the petitioner. An endorsement made by the Customs Authorities to the said effect made on the Bill of Entry is at Annexure
2. The contention of the petitioner is that the respondents 1 and 2 have no lawful authority to require the petitioner to produce a letter of credit or to refuse to release the consignment for transportation to Afghanistan, on the grounds that the respondents 1 and 2 have no authority to detain the goods for non-production of the letters of credit either under the Customs Act, 1969 or under any other laws for the time being in force in Pakistan. The requirement of the Letter of Credit or original Jawaznama are in contravention of the agreement which is subsisting between the Afghanistan Government and Pakistan Government. It is also contended that the consignment under import was already paid for directly to the Exporters and it is impossible for the petitioner to produce the Letter of Credit. Under section 29 of the Customs Act, 1969 the respondents 1 and 2 can at best regulate the transit of goods across Pakistan to foreign parties. Any procedure to be prescribed can be made by rules only and in turn the rules can be framed under section 219 of the Customs Act, 1969. The impugned orders are not such rules under the provisions of Customs Act and have no binding force. The petitioner is incurring heavy demurrage and it is submitted that the petitioner is exempted from payment of the dues of the Karachi Port Trust in terms of the said agreement. The respondent No, 4 has no lawful authority to recover the demurrage on the consignment imported by the petitioner. Thus the following prayers are made by the petitioner :-
(i) That the respondents Nos. 1 and 2 have no lawful authority to require the petitioner to produce the "Jawaznama" and/or the Letter of Credit for import of the consignment in the petition for transmission to Afghanistan.
(ii) To declare that the impugned orders Annexures 'C & D' to the petition respectively, dated 13th January, 1983 and 3rd October, 1982 are without lawful authority.
(iii) To declare that the respondent No, 4 has no lawful authority to recover from the petitioner any demurrage on the consignment in the petition.
(iv) To declare that the respondent No, 3 has no lawful authority to make any rules, regulations or law which are in conflict with the provisions of the agreement between the Government of Pakistan and the Government of Afghanistan vide Annexure 'B' to the petition.
(v) To direct the respondents Nos. I and 2 to release the consignment without requiring the petitioner to produce Jawaznama/Letter of Credit and further direct the said respondents to transport the goods to the border of Afghanistan.
(vi) Another declaration or direction which under the circumstances are deemed fit and proper.
(vii) Cost of the petition.
3. The respondents filed comments and, counter-affidavits. In their comments, however, stated that the commercial importers in Afghanistan are issued Jawaznama by the Government of Afghanistan and letters of credit by the banks in Afghanistan. There is, however, admission of existence of Transit Trade Agreement between the Governments of Afghanistan and Pakistan. The Standing Order No, 20 of 1960, dated 27th May, 1960 is admitted but this order outlines the customs procedure and documentation only for the transit of bona fide goods through Pakistan. The Standing Order was unaltered but the same does not debar the operation of sections 26 and 129 of the Customs Act, 1969. The petitioner has to complete the prescribed Bill of Entry which contains a colums of letter of credit and its date. The petitioner has to complete the Bill of Entry. It is further stated in the comments filed by the respondents that all the genuine importers of Afghanistan have produced and are producing Jawaznama and letters of credit. However the hereotype certificate from Da Afghanistan Bank cannot be treated and accepted in lieu of letter of credit and cannot be treated as an evidence that the foreign exchange was received by the suppliers of Afghanistan. This is a stereotype certificate and does not mention the mode of remittance in lieu of the letter of credit. The evidence of remittance of foreign exchange form Afghanistan for such commercial imports have to be produced in terms of the letter of credit. The respondents have a right to ensure that the goods in question are bona fide goods of Afghanistan Government. The provisions of the agreement (between Afghanistan and Pakistan) apply to the bona fide transit goods. The genuine Afghan Traders are producing Jawaznama and Letter of Credit for their genuinely imported goods. The petitioner has not produced his passports showing endorsement of the Da Afghanistan Bank for carriage of the currency from Afghanistan to abroad as in the normal procedure in this regard. There is no satisfactory evidence of remittance of the money from Afghanistan through its normal banking channels as per established practice. The Board has simply issued directives for completion of the Bill of Entry which requires the petitioner to specify the number and also to produce with the Bill of Entry the requisite Jawaznama and letter of credit which other such Afghan Traders are doing. There is no violation of any agreement.
4. On the other hand a further affidavit is produced, dated 23rd June, 1983 wherein it has been shown that in certain cases discrimination was shown and the goods were allowed to be transported without letter of credit and without proof of payment from Afghanistan and Annexures P/1 to P/3 are produced in this behalf. However, this further affidavit is answered by the respondents in their counter-affidavit stating that in these three cases the goods were perishable and, therefore, as a special case they were allowed to be transported in regard to the case of P/2 the passport containing endorsement of the bank of Afghan Kabul was shown and the Jawanama was also shown and, therefore, the goods were allowed. Simultaneously in other cases they were allowed because either the goods were perishable or subsequently they satisfied the Customs Authorities with regard to their payment abroad. In short the case of respondents 1 and 2 that the petitioner is not genuine importer of the goods and it is doubtful whether any Afghan Bank has through banking channels paid the amount direct to the exporters. Since the letter of credit is not produced and no passport or any evidence is available to the respondents 1 and 2, therefore, the goods were detained by the respondent No, 4.
5. As regards the cases cited and produced vide Annexures P-I to P-83, the respondents 1 and 2 state that these documents would not be available to the petitioner and it is not known as to how they have produced the same.
6. Mr. Sharaf Faridi, Advocate made submissions on behalf of the petitioner and Mr. Aziz Munshi, Deputy Attorney-General argued the case on behalf of the respondents. But before we take up the arguments of respective Advocates, it is necessary to reproduce the impugned orders, Annexures 'C' and 'D' which are as under :- Annexure 'C'
"OFFICE OF THE ASSISTANT COLLECTOR OF CUSTOMS, AFGHAN TRANSIT Dated 13th January 1913. CIRCULAR NO. 1/83.
' All concerned are hereby informed that Original Jawaznama along-with Letter of Credit must be produced for Afghan Transit goods.
' These orders will be effected from 13th January, 1983.
(AFTAB ANWAR BALOUCH), Assistant Collector of Customs, Afghan Transit."
Annexure "No, 79-80/Cus-L&P/3 (6)
To: Islamabad, the 21st September, 1982.
' From, Mr. Muhammad Sulaiman, ' Secretary (Customs), ' Tele : 23019.
' Collector of Customs (Preventive), ' Customs House, ' Karachi.
' The Collector, ' Central Excise & Land Customs.
' Qua ta Peshawar.
' Subject :-Misuse of Transit Facilities ' I am directed to refer to the subject noted above and to say that the Central Board of Revenue has been pleased to issue the following instructions for eliminating the abuse of the Transit Trade facilities for immediate enforcement by all Collectors.
(i) That the facility of transit under the Pak-Afghan Transit Trade Agreement should be made available only to those importers/ owners of goods in Afghanistan who or whose agents present a valid authorisation from the Afghan Government i. e. Lawaz'nama', which is equivalent to import licence/Import permit indicating the permission to cover the import of the goods arriving at the point of entry in Pakistan and
(ii) That the evidence of establishment of a letter of credit for the import of these goods through some bank in Afghanistan should be provided by the importer or his agent to cover the import of goods.
(Muhammad Sulaiman) Secretary (Customs)"
' It is also necessary to have a reference to Standing Order No, 20/60, dated 27th May, 1960.
Paragraphs 5 and 6 are to the point in this case which are quoted as follows :- 5(i), Bills of entry covering transit goods for Afghanistan will be filed in the usual form prescribed under section 86 of the Sea. Customs Act but with a distinguishing mark viz, a half inch thick light red coloured diagonal hand and will be presented to the receiving clerk in the Transit Group in "L"
Shed M. I. Yard alongwith the requisite Afghan Invoices. The Bill of Entry will be in triplicate and Afghan invoices will be in quadruplicate.
"6. Completion of Bills of Entry.-The importers will present with each bill of entry suppliers invoice in duplicate. The Appraisers will complete the bills of entry under the second appraisement system giving orders for inspection and verification of transit marks and numbers on the packages and the sealing thereof. Every bill of entry will be assigned a foreign free number of annual series by the Transit Group. Thereafter the original bill of entry with a copy of the suppliers invoice will be detached and the remaining documents handed over to the importer or his agent. The original bill of entry with a copy of suppliers invoice will be sent to the Statistical Section, as usual, who are noting the particulars will return to the Transit Group, The other copy of the suppliers invoice will be sent by Transit Group to the Valuation Branch direct."
7. The learned counsel Mr. Sharaf Faridi submitted that according to section 219 of Customs Act, 1969 the rules were to be framed and section 129 provides that "where any goods are entered for transit across Pakistan to a destination outside Pakistan, the appropriate officer may, subject to the provisions of the rules, allow the goods to be so transmitted without payment of the duties which would otherwise be chargeable on such goods." Mr. Sharaf Faridi learned counsel for the petitioner has stated that no rules were framed and as such according to the section 129 of the Customs Act the goods were to be allowed to transitted without payment. In this respect the learned Deputy Attorney-General Mr. Aziz Munshi has replied that there was, however, no question that the goods were detained due to non-payment of the dues and due to the formalities which are incumbent on the petitioner to produce the L. C. And complete the Bill of Entry according to the Standing Order, 1960. The Standing Order, 1960 provides that the Bill of Entry may be completed and the appraisers would check it. The section 6 is quoted above. There is no provision that the Bill of Entry could not be scrutinized by the Customs Authorities and that the letter of credit is good to be produced alongwith the Bill of Entry and the necessary Jawaznama. The orders issued by the C. B. R. (Central Board of Revenue) were in consonance with the provisions of the Customs Act and that the circular issued by C. B. R. At Annexure 'D' quoted above is legal and operative. It is the duty of the respondents to ensure that the genuine traders and the importers of foreign countries do the business genuinely and they are not engaged in illicit practice or otherwise engaged in those practices which are detrimental to the interest of Pakistan. Howevt , the learned counsel for the respondents has referred section 26 which contains the power of the respondents to act to ensure the proper documentation and proper information is given by the traders. The section 26 is reproduced as under :- "26. Power to require information to be furnished. -An appropriate officer may, by a requisition in writing, require any person concerned with the importation, exportation, purchased, sell, transport, storage or handling of any goods which are being or have been imported or exported to furnish such information relating to the goods as may be necessary for determining the legality or illegality of the importation or exportation of such goods, the value of such goods, the nature, amount and sources of the funds or assets with which the goods were acquired and the customs duty chargeable thereon, or for deciding anything incidental thereto and to produce, and allow the officer to inspect and take extracts from or make copies of any invoice, Bill of Lading, Book of Account or other book of document of whatever nature relating to the goods."
8. Next submission of the learned counsel for the petitioner is that there was a long and consistent practice of not requiring the L. C. Or Jawaznama for many years and that the practice is suddenly stopped by a circular, dated 13th January, 1983. The circular is based on the instructions to the officer by C. B. R. But the C. B. R. Could not do anything in the matters which are quasi-judicial in nature. To this learned counsel for the respondents Mr. Aziz Munshi replies that section 26 grants power even otherwise without the instructions issued by the C. B. R. To check all the necessary information's and to see that proper documentation is attached with all those goods which are imported by foreigners and the goods are in transit. The learned counsel for the petitioner has referred on the point of long standing practice to the authorities cited as below :-
(1) PLD 1970 SC 453.
(2) PLD 1976 Kar.
253.
(3) PLD 1962 SC 75.
(4) PLD 1965 SC 412.
' We would presently deal with each of the authorities referred to above.
9. In the authority cited in PLD 1970 SC 453 their Lordships observed as follows :- "Where the departmental practice has followed a course in the implementation of the relevant rule whether, right or wrong, it will be extremely unfair to make a departure from it after a lapse of many years and to disturb rights that have been settled by a long and consistent course by the practice.
This, to say the least, is bound to weaken the faith of the employees in the attitude and behavior of the department.
"As regards Department Constructions", that is to say, the construction which is placed in practice in the provisions of a statute or rules by the administrative authorities who are charged with the execution of the statute or the rules Crawford thus observes : "Where the executive construction has been followed for a long time an element of estoppel seems to be involved. Naturally many rights will grow up in reliance upon the interpretation placed upon a statute by those, whose duty it is to execute it. Often grave injustices would result should the Courts reject the construction adopted by the executive authorities."
10. Considering the above observations of the Supreme Court, the contention by the Deputy Attorney-General Mr. Aziz Munshi is that the present case does not involve the long-standing and consistent practice as nowhere in the Standing Order of 1960 it is mentioned that the L. C. Need not be examined by the Customs Authorities and it is not required. To the contrary section 26 of the Customs Act empowers the customs authorities to check all the requirements which are necessary in respect of the goods which are in transit. L. C. And for that matter Jawazoama and all necessary evidence and documentation were required. There was no definite order to exempt the production of L. C. And for that matter the Bill of Entry is to be properly filed at its requisite columns. The learned Deputy Attorney-General repels the contention and does not agree that there existed long- standing practice in this respect.
11. Second authority which is quoted in PLD 1976 Kar.
253. In this case Customs Authorities were, as a practice, consistently construed pipe as different from tube for a long time and on that basis had released several consignments of similar goods.The said departmental practice was held to be binding and could not be deviated or departed from in case of petitioners. The learned counsel for the respondents has replied in the same manner stating that there was no consistent practice as such by the department which would be binding on the Customs Department. A few cases which were cited by the petitioner were the special cases in which perishable commodities were involved and hence special orders were passed by the Customs Authorities.
12. In PLD 1962 SC 75 their Lordships held the rules called Karachi Allocation Rules, 1953 as not statutory rules but the same were called as 'Internal Regulations for guidance' of Estate Office. No rights vested in such rules. This authority does not help the petitioner inasmuch as the orders issued by the Assistant Collector of Customs at Annexure 'C' and also at Annexure 'D' or the orders in respect of the internal regulations for guidance based on the observation of the C. B. R. This authority is distinguishable.
13. In the authority cited in PLD 1965 SC 412 it was observed by their Lordships that although departmental instructions have no legal force in interpreting statutes, but furnish interpretation which the department has been accepting.
14. This authority does not carry us far enough to support the case of the petitioner. The respondents denied the fact of consistent practice and the instructions issued by the C. B. R. From time to time are complied with by the respondents believing that the same were issued under section 129 or section 26 of the Customs Act and they had the legal force.
15. The last submission made by the learned counsel for the petitioner was that the invoice in this case indicates that goods were ordered to be imported in November, 1982 and that the instructions were published on 13th January, 1983 to require the importers to produce the L. C. The goods were already imported and as such the orders, dated 13th January, 1983 would not apply in this case. In this respect it is argued by the learned counsel for the respondents that these instructions were issued only to ensure that proper check is made with regard to the payments of money to the exporters and such an evidence be looked into by the respondents and that the L. C. Was necessary as it was necessary prior to the date 13th January, 1983.
16. The case of the respondents is that this Constitutional Petition is not maintainable as alternate remedy was available to the petitioner by filing an appeal. The petitioner is required to fill the Bill of Entry properly and that the respondents are not barred from looking into any L.C. As is required by section 129 and section 26 of the Customs Act. More stress is laid on the genuine traders which the respondents believe that petitioner is not, and their consignment and the payments in abroad is doubted.
17. We are not inclined to allow this Constitutional Petition on the grounds that the law requires that L. C. Is to be produced and mentioned in the Bill of Entry and also other evidence was necessary to satisfy the respondents that actually the banks in Afghanistan paid the amounts to the exporters in foreign countries.
18. As regards the consignment lying with Karachi Port Trust, we are of the opinion that the demurrage may not be charged from the petitioner as the petitioner did believe that the goods are released in transit as a matter of course without showing L. C. It is, therefore, directed that the Custom Authorities shall issue the necessary delay/detention certificate to the respondent No, 4 1. e. The K. P. T. May not charge demurrage. Such a necessary letter be given by the respondents to the K. P. T. For not charging the demurrage. Under the circumstances no order as to costs is made.