ABDUL QADEER CHAUDHRY, J.--1. The petitioner imported two consignments vide invoices, dated 7- 6-1984 and 5-6-1984 for 36 metric tons and 51 metric tons, respectively, and according to the petitioner these consignments are iron and steel scrap. The consignments were inspected by the Principal Appraiser and the Assistant Collector of Customs and the goods were declared by them to be scrap metal in the form as imported. The said consignments were classified under P.C.T.
Heading 73.03 and were subjected to rate of duty of 70 per cent. The containers were classified under P.C.T. Heading 73.23 and subjected to import duty to 100 per cent plus 10 per cent sales tax.
The petitioner paid a total amount of Rs. 1,09,727. The case of the petitioner is that when he sought release of the consignments from the K.P.T, on 24-7-1984 after payment of the duty levied, he was informed that under the order of the respondent No. 2 the goods were not to be released unless no objection for the same was given by the respondent No. 1. The petitioner was informed that the goods were to be re-examined which were examined on 25-7-1984. The petitioner was asked to put back the goods in containers. On 30-7-1984 the petitioner was informed that the respondent No. 1 would examine the goods himself and till such time that he does, they cannot obtain release of the consignment. Despite the fact that the total amount of custom duty and import tax has been paid by the petitioner the respondents are refusing to allow the petitioner to take delivery of the consignments. In these circumstances the petitioner has filed this Constitutional Petition.
2. Mr. Shahid Rahim, Assistant Collector of Customs in his parawise comments stated that in view of the order passed by this Court in Constitutional Petition No. D-424 of 1983, dated 20-5-1984, all the consignments including the ones referred to in the present petition were held up to determine whether the goods imported by the petitioner could be classified under P.C.T. Heading 73.03. It was in this spirit that the present consignments were inspected on 25-7-1984 in the K.P.T, premises where the goods were still in the effective control of the Customs and had not physically moved out of the port premises. It was denied that detailed examination was conducted and the petitioner was informed that the goods would be re-examined. The consignments consist of various articles of auto parts including Diesel Engine, Differentials, Gear Boxes, Crankshaft Fuel injuc- tion Pump etc. These auto parts are though used are in a reasonable condition for being used for the same purpose for which they were manufactured. The petitioner has paid much higher price for the goods than is chargeable for scrap. Only such items would be treated as scrap which are fit for recovery of metal. The analysis made by the respondents bring to the conclusion that the goods imported in the present consignment cannot be classified under P.C.T. Heading 73.03. The respondent has not seized the goods under section 168 of the Customs Act, 1969 hence the limitation of four months is not valid.
3. On the consent of the parties the Court had directed the inspection of the consignments in the presence of the official assignee. The official assignee has submitted his report. The petitioner has also filed certain photographs to show that the goods are scrap.
4. It is not disputed that if the goods are scrap then it is classified under heading 73.03. According to Brussels Nomenclature Note 6 section XV "For the purposes of this section, the expression 'Waste and Scrap' means waste and scrap metal fit only for the recovery of metal or for use in the manufacture of chemicals". Explanatory note on heading 73.03 read:- "In accordance with the Note 6 to section XV waste and scrap of iron or steel means waste and scrap metal fit only for the recovery of metal or for use in the manufacture of chemicals. Such waste and scrap of iron and steel is of a miscellaneous nature and generally takes the form of:
(i) waste and scrap resulting from the cutting, shapping or other mechanical working of iron and steel.
(ii) Unusable, worn-out and broken articles of iron or steel frequently crushed or compressed together.
5. The principal contention of the learned counsel for the petitioner is that as no notice under section 168 of the Customs Act has been served upon the petitioner, therefore, the entire proceedings are illegal and without jurisdiction. In the absence of notice goods seized shall be returned to the petitioner. The learned counsel has also referred to the statement made by Mr. Aziz Munshi, the then Deputy Attorney - General on 27-12-1984 that action has been taken under section 195 of the Customs Act.
6. As regards the statement of Mr. Aziz Munshi, the Deputy Attorney-General appearing on behalf of the respondents has admitted that no action has been taken under section 195 of the Customs Act.
Be that as it may, we are of the opinion that any statement by Mr. Aziz Munshi would not change the nature of the proceedings if no action under section 195 had been taken against the petitioner.
We have to see whether the action taken by the respondents against the petitioner is permissible under law and if not whether such action should be struck down as illegal and without lawful authority. The scheme of the Customs Act in our opinion is sufficient to formulate the will of the Legislature. The prime object of the Customs Act is to effectively check smuggling. It is also a source of revenue. Import and export tax are levied not only to obtain revenue but also to protecting the goods of home industries against foreign competition. The Court would lean against the construction of the statute which reduced it to a futility. A statute is to be so construed as to make it workable and any construction which defeats the main scheme of the Act should be avoided. The relevant provisions of the Customs Act which are necessary for the disposal of the present petition are sections 18, 32, 80, 83, 168, 179, 180 and 195. Section 195 is not applicable as no action is being taken' by the Board of Revenue at the present moment.
Section 18 provides that, goods imported into or exported from Pakistan customs duties shall be levied.
Before we examine the other provisions of law it would be profitable to refer to section 168 of the Customs Act which lays down that goods liable to confiscation can be seized by an appropriate officer and a notice may be served on the owner of the goods or any person holding them and where any goods are seized under sub-section (1) and no show-cause notice in respect thereof is given under section 180 within two months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized. Section 168 is attracted to the goods which are liable to confiscation but if the goods are not liable to confiscation section 168 is not attracted.
7. The learned Deputy Attorney-General has stated that the goods have been detained under section 32 of the Customs Act. Section 32 contemplates that if any document or statement furnished to the customs authorities by any person is untrue and by reason of such statement or by reason of some collusion any duty or charge has not been levied or has been short-levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within three years of the relevant date, requiring him to show cause why he should not pay the amount specified in the notice.
Section 80 also provides for the assessment of duty. The goods shall be assessed to duty but if it is found subsequently on examination or testing of the goods, the goods shall without prejudice be re-assessed to duty.
Under section 83 an appropriate officer shall allow clearance of the goods if he is satisfied that the import of the goods is not prohibited or in breach of any restrictions and the owner of such goods has paid import duty and other charges, if any.
All these provisions would show that the customs authorities have the power to re-assess the duty if the duty is not levied correctly. Such action can be taken under section 32 of the Customs Act, It is admitted by the respondents that action against the petitioner was started after the announcement of the judgment by this Court on 9-5-1983 in Civil Petition No. 424 of 1983 (See H'aseem Traders vs. Government of Pakistan PTCL 1986 CL. 76). Learned counsel for the petitioner has also referred to para 3 of the judgment which reads as follows:- "On a reading of the impugned orders we find that this aspect of the case has not at ail been considered and the case has been decided on the sole criterion that because these goods could still be serviceable, therefore, this was not scrap. This argument has not convinced us. Several instances could be stated say one of collapse of a building. The steel used in errection of building.
Such steel by refinement could be used again but could it be said after the collapse of the building that the steel bars are not scrap, in our view it has to be termed as scrap."
He interpreted this part in his own way and contended that it has been conclusively ' determined by the Court that the steel used in erection of building is scrap. On the other hand the learned Deputy Attorney-General has disputed the interpretation put forward by the learned counsel and submitted that the case was remanded and, therefore, it is incorrect to say that the Court had finally determined the controversy between the parties. We agree with the learned Deputy Attorney-General. The observation made by the Court was in relation to the illustration cited by the Court in para. 3 of the judgment and this is the reason that the case was remanded to the customs authorities for determination afresh after rehearing the matter.
The learned counsel has referred to the case of I am Khan vs. Government of Pakistan and 3 others reported in 1983 CLC 786 (Kar.) but the authority is distinguishable as it relates to section 168 of the Customs Act. Similarly 1983 P Cr. LJ 2481 is not applicable to the facts of the present case. The learned Deputy Attorney-General has submitted that the goods ware not seized but they were detained and has referred to the Black's Law Dictionary where 'detain' and 'seizure' have been defined as under:- "DETAIN" to retain as the possession of personalty. First National Bank vs. Yocom 96 Or. 438, 189 p.
220, 221. To arrest, to check, to delay, to hinder, to hold, or keep in custody to retard, to restrain from proceeding, to stay, to stop. People vs. Smith, 17 Cal. App. 2d 436, 438."
"SEIZURE" to take possession of forcibly, to grasp, to snatch, or to put in possession. Hardie vs. State, 140 Tex. Cr. R. 368, 144 S.W2d 571, 575.
In Ballentine's Law Dictionary 'detain' and 'seizure' have been defined as under:- "DETAIN" to hold; to keep in custody; to keep, to detain goods as amounting to a conversion of them means wrongfully to hold them and keep them in one's custody. Walis vs. Farrington, 27 Okla 754, 116 p. 428.
"SEIZURE" the taking of a thing into possession, the manner of taking and whether such taking is actual or constructive depending upon the nature of the thing seized. 36 Am J2d Forf & PS 30.
Arresting and taking as prisoner."
In Halsbury's Laws of England seizure has been described as "for an act of the sheriff or his bailiff to constitute a seizure of goods, it is not necessary that there should be any physical contact with the goods seized, nor does such contact necessarily amount to seizure. The seizure is for the benefit of those who are by law entitled.
The words 'Seizure' and 'Detain' have not been defined in the Customs Act, therefore, the dictionary meaning has to be followed.
Mr. Justice (Retd.) Z.A. Channa in his commentary to section 17 of the Customs Act at page 77 of the 1st edition has expressed as under:- "Since two different expressions, namely "detention" and "seizure" have been used in the Act and as not only these two expressions appear to be somewhat different connotations, but further the consequences of seizure have been specifically detailed in the Act, while no such consequences in relation to detention have been spelt out or indicated in the Act, the inference suggested is that the Legislature has used the two expressions in different senses. The Supreme Court of Pakistan, in Zia- ur-Rehman's case PLD 1973 S.C. 49 has held that use of different expressions by the Legislature in different clauses of the same article was indicative of different intentions, and observed in this behalf as follows: "It is a well-established rule that we have to gather the intention of the law-maker from the words used by it; and if it has in two clauses of the same Article used different words, then it follows that its intention is not the same. Particularly, where such a conclusion also appears to be in consonance with reason and justice."
If, as it appears, the two expressions, "detention" and "seizure", have been used in the Act in somewhat different senses, then neither the presumption under section 156(2) would arise in the case of detention, where it does not constitute seizure for the purposes of the Act, nor would the provisions for the giving of notice to the person concerned contained in section 168(2) or furnishing of information under section 171 or the other consequences and provisions relating to seizure would apply to mere detention of goods as distinct from seizure.
The expressions 'detention' or 'detain' have also been used in sections 112, 172 and 186 and an examination of those provisions clearly leads to the conclusion that they cannot be construed in those sections as "seizure".
We are clear in our mind that the goods in question were detained by the customs authorities and they were not seized, therefore, no action under section 168 could be initiated against the petitioner.
In AIR 1962 SC 496 the expression 'seized' in the context of the Customs Act has been defined as to take possession of contrary to the wishes of the owner of the property.
In fact this exercise is not required in the present case as the respondents have stated that action was started after the judgment was announced by this Court in Civil Petition No. D-424 of 1983, (See Waseem Traders vs. Government of Pakistan PTCL 1986 CL. 76) therefore this was an act on the basis of an order by this Court. The point involved in that petition was also relating to the imposition of duty on scrap; and whether the goods in that case would be assessable as a scrap or not, therefore, the action taken on the basis of a judgment of the Court would extend the period of notice if any required under the law till the decision of that matter which is pending in the Court.
In West Bengal and others vs. Hindustan Motors Ltd. An another AIR 1975 Cal. 368 it has been observed that it is well-established that where any proceedings are stayed for a period by an order of Court or by injunction issued by any Court that period should be excluded in computing any period of limitation laid down by law.
As we have observed that action against the petitioner has been taken under section 32 of the Customs Act, therefore, the period of notice as required in this section is 3 years from the relevant date. That period has not yet expired and the learned Deputy Attorney-General has stated that as the matter was pending in this Court, therefore, no notice was issued as required under the law.
Even otherwise the period of three years has not yet elapsed the reason being that the goods have not been held liable to confiscation Under the Customs Act and, therefore, they have not been seized and do not require any notice under section 168 of the Customs Act. It has been observed in 1973 SCMR 411 and PLD 1977 Lah. 1318 that anything liable to confiscation under this Act makes it clear that the liability of confiscation is already determined or is no longer in dispute. As the goods are not liable to confiscation, therefore, section 168 is not applicable.
We are also supported by the judgment of East Pakistan Carriers Ltd. Vs. Assistant Collector of Custom and another, reported in PLD 1968 Dacca 856 wherein it has been observed that the Appraising Officers being unaware of the imposition of. Duty releasing ship free of duty but custom duty however, demanded subsequently on knowledge being gained of the goods coming within the purview of section 39(3) (present section 32) of the Act. Even if the goods have been released by the respondents that by itself does not absolve the petitioner of the duty leviable under the law.
Even after the delivery of the goods the petitioner is liable to pay duty if they have been wrongly assessed and action could be taken for something which was done in accordance with the provisions of the Customs Act after giving due notice within the stipulated period.
8. As regards the contentions of the respective parties about the merits of the case we would not enter into that controversy because we have already held that the respondents have taken action against the petitioner under section 32 of the Customs Act.
Learned counsel for the petitioner has referred to the case of Anis Ahmed vs. Government of Pakistan and 3 others PLD 1979 Kar. 709. It has been held in this case that provisions of Act, infraction of which involves penal action, to be construed strictly. There is no dispute with the proposition that penal statute must be strictly construed.
He has also referred to 1984 CLC (Kar.) 1650 but the authority is distinguishable. He also referred to PLD 1978 Quettal7 and PLD 1984 Kar. 269 and contends that the high Court can enter into facts and arrive at finding in constitutional jurisdiction.
9. There is no cavil with the proposition that the extraordinary power can be used in cases of glaring errors but where the jurisdiction of the Tribunals are created by statute the Court would enter into the question of fact only where there is sufficient material on record to decide the controversy between the parties. But where the further enquiry is to be made and the Tribunals having jurisdiction in the matter have yet to decide the matter it would not be proper to exercise such extraordinary jurisdiction. In the present case the respondents would give fair opportunity to the petitioner to place his case before the authorities and there are hierarchy of Courts which would decide the matter after due investigation.
10. It is contended by Mr. Khalid M. Ishaque learned counsel for the petitioner that the action of the respondents is unlawful and illegal. Once payment has been made the respondents are bound to allow the petitioner to take release of the goods. Under the provisions of the Customs Act the respondents are not entitled to retain the goods after all the legal dues have been paid.
This contention has to be considered in the light of the stand taken by the respondents. They have disputed the contention of the petitioner that the actual duty has been paid by the petitioner. The respondents were competent under section 32 of the Customs Act to assess the actual duty even where the goods have been cleared by the respondents. They are not debarred to take action under the Act. Even in those cases where the provisions of section 168 have been violated the only consequence would be that the goods shall be returned to the persons from whose possession the goods have been seized. Adjudication proceedings under section 179 is an independent provision which could be taken by the customs authorities. The adjudication proceedings would not be invalidated simply because goods have been returned to the person. The proceedings could be started after the principle of natural justice has been complied with by the customs authorities.
11. However, the respondents have no authority to detain the goods under section 32 of the Customs Act and in the present case they had already examined the goods and in fact cleared the goods; but after the judgment of the Court in Constitutional Petition No. 424 of 1983 the respondents started fresh enquiry, therefore, while maintaining the action I of the respondents under section 32 of the Act, we declare that the detention of the petitioner's goods were illegal and without authority. The goods have already been examined by the respondents and they be released but the proceedings under section 32 of the Customs Act may be taken in accordance with law.
12. The petition is accepted to this extent. There will be no order as to costs.