1. NAZIM HUSSAIN SIDDIQUI, CJ---This judgment will dispose of Constitutional Petitions Nos. D-7, 337, 579, 621, 643, 673, 674, 823, 829 and 831 of 1999. In all these petitions common questions of fact and law are involved.
2. The vehicles of the petitioners were seized by the Customs Authorities on different dates. The number of the vehicles and dates of their seizure are as under:-- Name of the Petitioner Vehicle No,Date of Seizure Farooq Jamil PL-1804 4-3-1998 Major (Reid.) Abdul Rauf KhanPH-3380 24-2-1999 Rana Saleem Akhtar PL-9200 15-9-1998 Malik Fida Hussain PG-3460 2-3-1999 Muhammad Rehan PL-2223 16-12-1998 Syed Jehan Shah PH-4091 21-4-1999 Shehzad Ahmed PL-8290 2-3-1999 Jawed Siddique PG-8198 21-4-1999 Mehboob Alam PG-4859 5-10-1998 MRs,Rukhsana Aftab PH-4367 17-11-1998 The petitioners have maintained that seizure was illegal and have prayed that the concerned authorities be directed to hand over said vehicles to them immediately.
3. Under the concessional scheme for revamping of public transport system, Ministry of Finance and Economic Affairs, issued Notification No,SRO.251(1)/93, dated 3rd April, 1993, whereby customs duty, sales tax and Iqra Surcharge were exempted, as specified in said notification, which contained, as many as, 12 conditions and two of them are relevant for the disposal of these cases viz. Conditions Nos.(v) and (vi) which are reproduced below: "(v) the taxi, mini-bus, bus, commuter van, pick-up, tri-wheeler auto rickshaws or trucks, as the case may be, imported under the concessionary rates of duty admissible under this notification shall not be transferable, except with the prior approval of the Ministry of Communications, Government of Pakistan, and subject to the condition that the person to whom the vehicle is so permitted to be transferred shall use the said vehicle as a taxi or for public transport or goods;
(vi) the vehicles imported under this notification shall not be used for any other purpose till the vehicle is scrapped after prior approval from the Ministry of Communication, Government of Pakistan."
4. Above notification was amended as per Notification No,SRO 816(1)/93, dated 16th September, 1993, and Notification No,SRO 826(1)/93, dated 20th September, 1993, to the extent specified in these notifications. Notification No,SRO 251(1)/93 was rescinded by Notification No,SRO 439(1)/93, dated 13th June, 1996.
5. On 28th May, 1998, the Central Board of Revenue issued the Letter No,C.No,2(9) Tar.II/91, in respect of Yellow Cab Scheme, which reads as under:-- "2. The matter was examined in detail and the case was referred to ECC of the Cabinet for decision.
6. The ECC has now decided that the Yellow Cabs, seized/confiscated should be released on payment of customs duty and other taxes on a depreciated value of 50%. Depreciation for such vehicles will be computed in accordance with Customs General Order No,4 of 1993 irrespective of the engine capacity. After release as aforesaid, the owner shall be at liberty to use the cab as he wishes, provided he has cleared the banks liabilities. The vehicles impounded by the banks shall also be disposed of in the like manner. In case of vehicles that have been auctioned by the banks without payment of duty/taxes, demands may be raised to recover this amount.
3. If the confiscated cabs are not got released by the owners on these terms, the same should be auctioned at the best price offered.
4. The owners of yellow cabs who desire to get out of the scheme can do so after payment of duty and taxes on depreciated value and discharging their bank liabilities."
7. Central Board of Revenue on 17th September, 1998, issued Customs General Order No,19 of 1998 and its Serial No,5 related to yellow cabs and it stated that penalty, fine/confiscation in respect of yellow cabs was to be in accordance with the letter quoted above. Thus, it is clear that action, in respect of yellow cabs, is to be taken as per terms of said letter.
8. Show-cause notices were issued to the petitioners for having contravened the conditions by changing colour of vehicles, removing therefrom the luggage carrier, taxi meter, and taxi sign, the driver not being in possession of Pass-book and authority letter, as was required as per SRO dated 20-9-1993 and also on the ground of transferring the vehicles without prior approval of Ministry of Communication, Government of Pakistan.
9. In all above petitions, except Petitions Nos.D-829 and 579 of 1999, adjudication proceedings so far, as per statements of learned counsel, have not, yet, taken place. In Petition No,D-829 of 1999, as per order dated 8-12-1998 of Deputy Collector of Customs, Preventive, under clauses (10-A) and (14) of section 156(1) of the Customs Act, 1969, hereinafter referred to as the Act, the vehicle in question was confiscated and an option was given to owner of vehicle to get the same released against payment of Customs Duty and other taxes in terms of the letter quoted earlier. In C.P. No,D-579 of 1999, order in above terms was passed on 23-10-998, but in appeal, it was set aside and the matter was remanded to the Adjudication Authority for retrial.
10. Mr. Abdul Rauf Khan, Advocate, addressed the Court and his arguments were adopted by learned counsel appearing for other petitioners, It is contended by Mr. Abdul Rauf Khan, Advocate that these vehicles were cleared from the port after the payment was made, as such, a legal right had accrued to the petitioners to retain them. Learned counsel also argued that payment of duty structure after 16-9-1993 could not be charged unilaterally.
11. It is an admitted position that in these matters question of confiscation of goods or imposition of penalty is involved. This question or such other allied questions at initial stage, are to be resolved by Assistant Collector, Additional Collector and Collector of Customs, in terms of section 179 of the Act. All the petitioners instead of availing the remedy available to them under this Act, have rushed up to this Court for the reliefs mentioned earlier, which is not proper. They shall first avail the alternate remedy available to them under the Act. It is significant to note that option to pay fine in lieu of confiscated goods is available to the petitioners and it is for them to exercise said option in case their vehicles are confiscated. After confiscation, the goods immediately vest in the Federal Government arid are to be dealt with in accordance with section 169 of the Act.
12. Now relaxation of Customs duty and other taxes can only be claimed in terms of letter dated 28-5- 1998 quoted above. Besides, depreciated value of vehicles is to be computed in accordance with Customs General Order No,4 of 1993, irrespective of the engine capacity. Further, it is noted that in spite of the fact that the Notification, dated April 3, 1993, has been rescinded, yet, under section 31-A of the Act, recovery of the Government revenue is protected. Above all is to be done by the Customs Authorities.
13. Accordingly, we direct the Customs Authorities to decide the case of each of these petitions according to law, particularly keeping in view the directions contained in the letter dated 28th May, 1998, as early as possible. The petitioners are also directed to appear before the relevant customs authorities for above purpose within three months from 11-8-1999.
14. By short order, dated 11-8-1999, we had dismissed these petitions in limine and these are the reasons for the same.