' MAMOON KAZI, J.---The petitioner seek leave to appeal in respect of the judgment of a Division Bench of the Peshawar High Court passed in Writ Petition No,359/1995, dated 22-5-1995, dismissing the said petition.
2. The petitioner manufactures Poly Propylene, Poly Ethylene and Craft Paper for which the petitioner claims to have a licensee for the import of raw material from outside the country and for warehousing the imported goods.
3. The petitioner could not clear its arrears in respect of the import duty and other related charges of Customs payable on such goods and an amount of one cruor had become due and payable on this account for which the petitioner at its request was allowed installments by respondent No,2 vide order No,26/1994 dated 24-11-1994. The petitioner was accordingly allowed to clear such arrears by ten fortnightly installments of Rupees ten laces each, the first of such installments being payable on the 15th February, 1995. However, the petitioner could pay only four such installments leaving an amount of Rs,60 laces still unpaid.
4. The petitioner received notice dated 18-3-1995 from respondent No,2 indicating that the petitioner had failed to clear its goods which had been removed into a private bonded warehouse within the stipulated period of warehousing in accordance with the provisions of section 98 of the Customs Act. The petitioner was therefore called upon to clear the amount of duties and taxes etc. Payable on such goods within 15 days from the date of the notice failing which it would be liable for action under section 112 of the Customs Act. The said notice was followed by another notice dated 28-3-1995 calling upon the petitioner either to clear its raw material lying in the said warehouse or clearance of its goods would be stopped after 31-3-1995.
5. Feeling aggrieved by the said notice the petitioner filed a constitutional petition before the Peshawar High Court but the said petition was dismissed vide judgment dated 22-5-1995, and hence this petition.
6. When the leave petition was filed before this Court interim stay was granted in favor of the petitioner on 31-5-1995 which was further extended by another order passed on 21-6-1995.
However, the petitioner was directed to pay the said balance of Rs,60 laces to the Customs Authorities within a period of two months from the date of the passing of the said order.
7. The main contention of Mr M. Nawaz Abbasi learned counsel for the petitioner before this Court has been that the notice dated 28-3-1995 cannot be sustained by law as the respondents have no lawful authority to stop clearance of the finished goods of the petitioner.
8. When a similar argument was advanced before the learned Judges of the Peshawar High Court it was held by them that notwithstanding the provisions of sections 111 and 112 of the Customs Act, such action was warranted under section 202 of the said Act (as amended vide Act V of 1989 which came into force on 1-7-1989). A perusal of the said section indicates that Customs Authorities have been empowered by the said section to take certain steps for recovery of Government dues by detention and sale of goods of the defaulter. While conceding that such powers vest in the Customs Authorities under the said section the learned counsel for the petitioner has nevertheless argued that such powers could be exercised only in respect of goods which are under the control of the Customs, Central Excise and Sales Tax Authorities, as the case may be, but the said section does not empower such authorities to stop clearance of any finished goods which have been removed from the warehouse after payment of duties, taxes, or any other charges.
8-A In our view, a complete answer is provided by subsection (3) of section 202 of the Customs Act which is as follows:- "(3) If the amount referred to in the notice under subsection (2) is not paid within the time specified therein or within the further time, if any, allowed by the appropriate officer, the appropriate officer may proceed to recover from the defaulter the said amount by one or more of the following modes, namely:--
(a) attachment and sale of any movable or immovable property of the defaulter; and
(b) appointment of a receiver for the management of the movable or immovable property of the defaulter."
The procedure provided by subsections (2), (3) and (4) of section 202 indicates that if any amount payable on account of any duty, tax etc. Cannot be recovered from the person liable to pay the same, as provided in subsection (1) of section 202, the appropriate officer may serve upon the defaulter a notice in the prescribed form requiring him to pay the amount specified therein within such time as may be so specified. Clause (a) in subsection (3) of the said section indicates that the said amount can be recovered from the defaulter by attachment and sale of his movable or immovable property. Subsection (4) of the said section further provides that for the purpose of recovery of duty or levy under subsection (3), the appropriate officer shall have the same powers which under the Code of Civil Procedure, 1908 a Civil Court has for the purpose of recovery of an amount due under a decree. Consequently if any action by stopping the clearance of the petitioner's goods has been taken by the respondent in pursuance of the notice dated 28-3-1995, such action was fully warranted by the aforesaid provisions of subsection (4) of section 202 of the Customs Act. No doubt, reference was not made to section 202 of Customs Act in the said notice dated 28-3-1995 received by the petitioner, but if the action proposed to be taken in pursuance of such notice is warranted under the law, the same cannot be rendered invalid by mere failure of the Authority sending such notice to refer to the relevant provisions of the law under which the action is proposed to be taken.
9. We are therefore, unable to agree with the contention of the learned counsel for the petitioner that the Customs authorities have not acted within their powers.
10. For the aforesaid reasons although leave is refused, but in view of the interim order passed by this Court on 21-6-1995 the petitioner is allowed time to clear the remaining dues of the Customs within the period specified in the said order, that is to say, by 21-6-1995 and until then no further action would be taken by the respondents against the petitioner. However, in case the petitioner fails to clear the remaining dues by such time, the respondent will be at liberty to take any action as provided under the law for recovery of the said dues from the petitioner.