1. ' RAJA QURESHI, J,---Constitutional jurisdiction has been invoked in the aforementioned petitions seeking the following main reliefs:---
(a) declare that the blocking of Bill of Entry by respondent No,1 vide Annexure "E" is illegal, unjust, void and of no legal consequence;
(b) direct the respondent No,2 to allow the benefit of Delay Detention Certificate in. Respect of the petitioner's case forming subject-matter of the case for the period as mentioned in the Delay Detention Certificate respectively and release the goods without charging my demurrage till the date of delivery;
(c) direct the respondent No, 2 to issue 'free slip' for the subsequent period from their refusal to accept first Delay Detention Certificate."
2. ' Briefly the case set up by the petitioner is that petitioner is a registered importer of allied raw material, specifically high density polyethylene grade 3080 (film grade). Under H.S. Code No,3901.2000. In performance of their commercial activity, the petitioner had entered into a contract with their supplier at Mexico for import 75 metric tons of the aforementioned raw material at the rate of US $ 840 per M.T. Consequently, the goods are stated to have arrived at Karachi on 31-7-1996. Upon such arrival of goods, the petitioner is stated to have applied for "Clean Report of Finding" from P.I.C. Company, who had issued a "Clean Report of Finding", but specified a rate higher than what was declared by the petitioner as US $.971.90. Per M.T. According to the petitioner, the assessm ent of value of the goods as assessed by the P.I.C. Company was much higher and was not commercially viable to the petitioner. As such the goods imported were not cleared for Home consumption and it was under these compelling circumstances that the petitioner had to resort to the filing of bill of entry for bond so that the dispute in relation to valuation could be sorted out by the petitioner and the respondent No,1. Such request for in bonding was stated to have been denied to the petitioner as, according to the petitioner, the bill of entry was blocked in the computer by the respondent No,1 on the ground that earlier consignments imported by the petitioner had overstayed in the Customs Bonded Warehouse and were not cleared within the time specified under the provisions of the Customs Act. Details of such overstayed consignments in bond have been reflected being about 8 such consignments (Annexure "E", page 23).
3. ' It was contended by the learned counsel for the petitioner that the dispute in relation to valuation of the goods was referred to the "Working Committee" for settlement and such controversy for determination of the value of the goods consumed considerable period of time, and therefore, goods remained at the port for a long period of time resulting into heavy demurrage charges which were incurred by the petitioner. It was contended that in the event of overstay of goods at the Customs Bonded Warehouse, the provisions of section 98 would come into play requiring the importer to pay a penal surcharge at the rate of 2 per cent. But nowhere in the Customs Act is a provision available for blocking further entry by restricting the goods of the petitioner to be warehoused. It was only on 31-12-1996, when the bill of entry of the petitioner were stated to have been "unblocked" and finally the valuation of the petitioner initially specified was canvassed before us to have been accepted by the respondent No, 1 .
4. ' Based on the settlement of value dispute favorably to the petitioner, a delay detention certificate was issued to the petitioner enabling them to seek reductions of demurrage charges from the respondent No,3. Such Delay Detention Certificate was declared to have been received but not accepted by the respondent No,2, where after, it seems the petitioner had approached the respondent No,1 seeking correction of the Delay Detention Certificate spelling out a clear picture to the effect that delay in clearance of goods was occasioned on account of dispute in valuation.
5. Accordingly, the respondent No,1 is stated to have corrected the Delay Detention Certificate for the delay on the part of the Customs. The respondent No,2 even then did not accept the corrected Delay Detention Certificate and rejected the same vide order dated 15-7-1997. Reliance has been placed on 1993 CLC p.2022 (Aftab Ahmed Saeed v. Federation of Pakistan) and 1995 CLC p.1456 (M/s. Al-Rukiya Traders v. Central Board of Revenue).
6. ' Conclusively, it was contended that no reasons whatsoever had been assigned by the respondent No,1 in writing under section 84 of the Customs Act, while refusing permission for in bonding, as there was no restriction whatsoever for in bonding further goods of the same importer so long as penalty provided under section 98 of the Customs Act is paid by such importer. More so, the delay in deciding the dispute is firstly attributable to the respondent No,1 and secondly to the respondent No,2. If delay is occasioned by acts and omission of the respondent No,1 then such demurrage and storage charges are to be paid by the respondent No,1 and not the petitioner. It has been contended that once a certificate of delay detention is issued by the respondent No,1, then the respondent No,2 is bound to accept the same under Rule 8 of the SRO.129(KE)/94, dated 12-7-1994 and for that matter the respondent No,2 is not justified in rejecting such certificate which is stated to be malafidely motivated. The above S.R.O. Has been issued by the Ministry of Communication in pursuance of section 43(b) of the Karachi Port Trust Act, 1886. Sub-rules (ii) and (v) of Rule 8 have been contended to be attracted in the instant case, which, for the purpose of ready reference, are reproduced here in under:--- "Delay Certificate will be acceptable by the KPT for the following reasons only:-- (i)
(ii) Delay due to inquiries made by the Customs House to obtain information necessary for the completion of the B/E.
7. (iii)
8. (iv)
(v) Any other reason arising out of the passing of Bill of Entry by the Customs House and acceptable to Karachi Port."
9. ' On the other hand, the respondents Nos.1 and 3 have taken a position before us that in bond bill of entry number was allocated to the petitioner on 28-8-1986 but the petitioner was duly informed that such in bonding cannot be allowed as a few of the consignments already warehoused by the petitioner, are lying in the warehouse and have overstayed. Details of such consignments lying over-stayed were provided to the petitioner and such details computer fed which had necessitated the blocking of entry for in bonding and consignments in respect of defaulters or overstay in bond. In order to de block such block by computer, a specific request is required to be made for seeking relief under section 84 of the Customs Act and it was only on 31-12-1996, that the petitioner had represented before the respondent No,1 seeking in bonding which was accordingly allowed. Reference to the dispute of valuation having been referred to the "Working Committee" has not been disputed before us by the respondent No,1 but the respondent No,1 has conceded to the issuance of delay detention certificate issued on 6-1-1997 covering a period from 28-8-1996 up to 15-1-1997 reflecting the cause of delay to be "due to blocking in computer regarding payment of taxes overstayed goods in warehouse". Further issuance of delay detention certificate has also been conceded elaborating the cause of delay. More so, the learned counsel for the respondent No,1 as well as respondent No,3 have submitted that there are serious questions which are required to be resolved by recording evidence, maintainability of the petition has been questioned on the premise of not resorting to the alternate remedy by way of an appeal. Respondent No,1 contended that in so far as the 7 consignments having overstayed in the bond, there was no dispute on valuation and finally it was strenuously argued before us that delay detention certificate which has, in fact, been issued by respondent No,1 ought not to have been issued as the petitioner did not qualify to receive such certificate of delay detention and it was in these circumstances that the petitioner was canvassed to be disentitled to the certificate of delay detention.
10. ' The position taken by the respondent No,2 is that the respondent No,2 is entitled to the receipt of money as demurrage charges duly incurred on each consignment. Such acceptance of certificate of delay detention vests under the exclusive domain and control of the respondent No,2 who have to adjudge acceptance of the same in accordance with note 8 of the aforementioned S.R.O. And only thereafter could the petitioner be extended the facility of not demanding demurrage from them.
11. ' We have carefully considered the submissions made before and have examined the record and find that there are two aspects of this matter: one dealing with demurrage, which the goods meanwhile have incurred and the other, what the petitioner terms as an illegal exercise of power, whereby the petitioner's goods,. During the relevant period, were not allowed to be removed to the bonded warehouse, resulting in further financial detriment. The first of these relates to the respondent No,2 whereas the second involves the functionaries of the Federal Government.
12. Another feature which warrants our consideration is the issuance of certificate of delay detention certificate by the respondent No,1 favouring the petitioner but not acceptable to the respondent No,2, but during the course of hearing it has been canvassed that the certificate of delay detention issued in favour of the petitioner was. In fact, not the entitlement of the petitioner but has been issued erroneously. This aspect of issuance of delay detention certificate being controverted now to have been issued erroneously disputing the petitioner entitlement to receive the same and the respondent No,2's refusal in honouring the said certificate leaves us to a controversy being factual in nature which cannot be resolved in these proceedings as to whether the petitioner was entitled to the issuance of delay detention certificate and whether the respondent No,1 had or had not erroneously issued such certificate and whether the reasons assigned in the certificate of delay detention are reasons which would attract sub-rules (ii) and (v) of Note 8 of SRO 129(KE)/94, dated.
13. 12-7-1994. These questions can only be settled on the factual plan by recording evidence of the parties which cannot be done under Article 199 of the Constitution of Islamic Republic of Pakistan.
14. 1973.
15. ' In view of the aforementioned, we would remand the case to the respondent No,1 who could record evidence and resolve the factual controversy mentioned hereinabove within a period of one month from the date of receipt of this order.
16. 'Aforementioned are our reasons for the short order announced by us on 16-4- l 998.