This judgment will decide Writ Petition No.24847 of 1998, Writ Petition No.24848 of 1998, Writ Petition No.24849 of 1998 and Writ Petition No.24850, of 1998, as the same raise common questions of law and facts.
2. The case of the petitioners is that they imported consignment of plastic scrap which was transhipped to Faisalabad Dryport. On arrival of the consignment at Faisalabad Dryport; the petitioners claims to have filed bills of entry. It is alleged that on filing of bills of entry, it transpired that the goods had been seized by respondent No.3 under section 168 of Customs Act, 1969. It is claimed that there was no discrepancy in the description, classification and value and in regard to weight of the consignment, and that column of weight, was left blank with the request that weighment of goods be made by the examining officer.
3. On the allegations that after seizure of the goods under section 168 of Customs Act, the Custom Department was bound to issue show-cause notice within two months or within the extended period but neither any show-cause notice was served nor goods released, petitioners filed Writ Petition No.23693 of 1998, Writ Petition No.23691 of 1998, Writ Petition No.23692 of 1998 and Writ Petition No.23895 of 1998 for seeking direction that the goods be released in accordance with law.
These petitions were disposed of on 17-11-1998, with the direction that if the show-cause notice had been issued after seizure of goods the same should be finalized within three weeks and if no show- cause notice within the prescribed period was given under section 168 of the Act, the respondents should finalise the assessm ent of the goods and proceed in .The matter strictly in accordance with law within the same period.
4. The grievance voiced in the present petitions is that no show-cause notice had been issued within the period prescribed in law but instead of returning the goods, the respondents proceeded to issue fresh show-cause notice, dated 28-11-1998, calling upon the petitioners to explain as to why the goods should not be confiscated and that they should not be penalised under clauses (9) and (14) of subsection (1) of section 1 of Customs Act, 1969. Petitioners claimed that the show- cause notice and also the conversion of seizure into detention under section 2(kk) was untenable. It is claimed that the natural consequences of lifting of seizure and returning of the goods to the petitioners which were illegally withheld.
5. Respondents, explained that in compliance to the order passed in the earlier writ petitions, they treated the goods as non-seized ordinary imported consignments and action was initiated for assessm ent under the Customs Act and the Import and Export (Control) Act, 1950. It was maintained that on re--examination of the goods by a team comprising Assistant Collector (Imports), Superintendent (Imports), the concerned Examiner and Appraiser and the Clearing Agent, the goods were found to be Printed Plastic Films (25134 Kgs.) in rolls/reels of different sizes and width, having printed thereon various brand names of foreign origin eatables/drinks, metalized Plastic Films (2784 Kgs.) and Plain Plastic Film (142 Kgs.). Due to different sizes and width of the goods they were found to be job lot quality goods. It was also observed that the importer had declared the weight less by more than 10 M.T. On which duty and taxes are estimated. Furthermore, it was found that the consignment comprising of imported Printed Plastic Film of job lot quality (25134 Kgs.) import of which was not permissible under the law. It was alleged that the import was restricted under section 15(g) of the Customs Act and the current Import Policy Order as the importer had failed to produce any licence or written consent of the registered proprietor of the brands/designs appearing thereon. It was maintained that offence in terms of section 32 of the Customs Act, 1969 was found to have been committed. According to the respondents, the petitioners were asked to explain why the goods should not be confiscated and that they should not be penalised in accordance with law and after alleged hearing on 4-12-1998, final order was passed.
6. Learned counsel for the petitioners argued that under section 168 of the Customs Act, if the goods have been seized, show-cause notice has to be given within two months from the date of seizure which period can be extended by two months by the Collector by recording reasons for extension. It was contended that section 168(2) provides that if no show-cause notice was issued within the prescribed period the goods ought to be -returned to the persons from whose possession the same were seized. It was added that in terms of the orders already passed in the writ petitions, the respondents, after having found that no show---cause notice was issued were duty bound to return the goods to the petitioners. Learned counsel contended that the order seizure could not be converted into that of order of detention. It was argued with vehemence, that order, dated 4-12-1998 was not only mala fide but it was back dated, as on the last date of hearing, an impression was given that the order would be passed after hearing the petitioner and awaiting decision in the writ petition. Continuing his submissions, learned counsel argued that the respondents extended discriminatory treatment to the petitioners as the consignment with identical description and characteristic were conveniently departed and clearance was allowed by Customs Agency but in the matter of petitioner, a different yardstick was applied.
7. In reply, learned counsel for the respondents, argued that after the lifting of seizure, the goods could at best be returned to the person from whom it has been taken in custody and in this case, admittedly, the goods were not taken from the custody of petitioners, therefore, there was no question of returning the same, as claimed by the petitioners. It was explained, that the goods were lying in Dryport Authorities before customs clearance when order of seizure was passed and the natural consequence of expiry of period of seizure was that the seizure stood lifted and the matter was to be processed for assessm ent of customs duties and taxes and till such time, customs clearance was made, the goods could not be claimed. Learned counsel submitted that on re- examination, the respondents found that the import of consignment was not permissible under the import policy and that there was misdescription. Show-cause notice was issued and order was passed by the Collector on 4-12-1998. It was added that section 168 of the Customs Act and section 180 of the Customs Act provided for two different consequences. It was contended that under section 180, the respondents could lawfully order detention in anticipation of imposition of penalty.
The allegations of discriminatory treatment were also refuted.
8. From the facts referred to herein above, the admitted position is that order of seizure of goods was challenged in the previous writ petitions which were disposed of with the direction that if any show-cause notice had been issued upon the seizure of goods, the same should be finalised within three weeks in accordance with law and on its own merits and in case show-cause notice had not been issued within the prescribed period as given in section 168 of the Customs Act, 1969, the respondents should finalise the assessment of goods and proceed in the matter strictly in accordance with law.
9. Show-cause notice was not given within the period prescribed by section 168 (ibid), instead, respondents issued show-cause notice under section 180 of the Customs Act and called upon the petitioners to explain why the goods should not be confiscated and why the petitioners be not penalised under the provisions of clauses (9) and (14) of subsection (1) of section 156 of the Customs Act, 1968 read with section 3(3) of the Import and Export (Control) Act, 1950 an the case was fixed for hearing on 4-12-1998. No doubt, section 168 of the Customs Act, 1969 contemplates that if show-cause notice is not given within two months or within the extended period, the goods should be returned to the persons from whose possession the same had been seized but this will not help the petitioners, as the goods were not in the custody of the petitioners at the time when the seizure was effected and were with the Port Authorities. It is not denied during hearing of these petitions that the goods had not been cleared after payment of customs duties and were not in possession of the petitioners at the time when seizure of goods were effected and, therefore, the demand of the petitioners, for direct return of goods to them, could not be possibly adhered to.
Even if the seizure had been lifted, yet the other proceedings for payment and clearance of customs duties had to be undertaken, and in the absence customs clearance, the release of the goods could not be possibly asked for.
10. . The other question for consideration is as to whether the customs authorities could issue notice under section 180 of the Customs Act, after the period prescribed in section 168 of the Customs Act had lapsed. No doubt, failure on the part of Customs Officers to issue notice within the period prescribed by subsection (2) of section 168 and the proviso thereto would clothe the person, from whom the goods have been seized, with a right to claim return of the same but it would not set at naught the provisions of section 180 of the Act and the Customs Officers would not be denuded to its powers to issue notice under section 180, as section 180 does not provide any time limit for the issuance of such notice. The only requirement of the section is that no order under the Act should be passed for confiscation of any goods or for imposition of penalty, unless the owner of goods, is given an opportunity of making representation and is allowed a reasonable opportunity of hearing.
The notice contemplated by section 180 is not subject to the time limit as contained in 8 section 168 of the Customs Act and consequently, the validity of the notice under section 180, issued after the expiry of period, given in section 168 and the proceedings held on the basis thereof, cannot possibly be questioned on the grounds that the notice was issued after the expiry of two months or the extended period in terms of section 168 of the Act. I am fortified in this regard by the rule given in Messrs Sakindar & Brothers v. Government of Pakistan, PTCL 1991 CL 177 and Joint Secretary, Central Board of Revenue (Customs) and another v. Raja Nazar Hussain and others PTCL 1991 CL 200.
11. The other contention of learned counsel for the petitioners, that certain other parties were allowed import of similar consignment without objection but the petitioners were treated with discrimination, cannot be possibly decided m the present proceedings, as it involves factual investigation. The question as to whether certain imports of similar consignments were made and the goods of identical characteristic were permitted without objection, particularly when the allegations of respondents is that the import of the disputed goods was not permissible under the import policy, will of course require some inquiry, which can be made by the Adjudicating Officer and not in the present summary jurisdiction.
12. There is, however, substance in the submission of learned counsel for the petitioners that the final order, dated 4-12-1998, claimed to have passed by the Collector, after notice of- this writ petitions cannot sustain, as the rule of natural justice was seriously offended. The order is stated to have been passed on 4-12-1998. In the main writ petitions, the learned Legal Advisor of the respondents appeared in this Court on 3-12-1998 when the cases were adjourned to 8-12-1998. On 8-12-1998, a request for filing a detailed reply was made but it was not claimed that the final order had already been passed. Collector of Customs, respondent No.1, present in the Court, was asked to produce the original record, pertaining to the proceedings, in which the final order was passed, which he did, and on scrutiny thereof, it has been observed that the notices were claimed to have been issued through registered post on 28-11-1998 while the order passed was passed on 4-12- 1998. There was no acknowledgement due, evidencing service of a notice nor the Collector had made any observation in his order that a notice was duly served upon the petitioners. So much so postal receipts were missing from the record and there was no material to show that any postal notice or registered notice was ever served upon the petitioners. It, thus, appears, that the order was haphazardly passed without ensuring that the petitioners were served and were allowed reasonable opportunity of hearing. The requirement of law is that the owners of the goods should be permitted to make representation and that reasonable opportunity of hearing should be extended to him. In this case, the order was passed without p service of notice or to provide opportunity of hearing and, therefore, the same cannot sustain.
13. Faced with this situation, the Collector of Customs, submitted that he was prepared to pass fresh order after hearing the petitioners and for this purpose, the date may be fixed by the Court.
14. Learned counsel for the petitioners, submitted that the petitioners are apprehensive that the Collector of Customs, may not be influenced by his previous decision. There is no reason for such apprehension. Respondent No. l having himself, agreed to pass a fresh order, keeping in view the circumstances noted herein above, the petitioners will be given full opportunity of hearing and it is expected that the order will be passed by respondent No. l by exercising his jurisdiction fairly, independently, impartially and strictly in accordance with law and by considering the material as will be produced before him. The petitioners shall be at liberty to produce the documentary evidence of the alleged import of similar goods by other importers or any other material, in support of their claim which of course will be attended to by the Collector, through the speaking order.
15. These petitions are, therefore, disposed of with the direction that the Collector of Customs (respondent No. l) shall make fresh adjudication, in terms of the show-cause notice, after giving parties with opportunity of hearing and considering the material produced before him.
16. As mutually agreed by the parties, the case will be heard by respondent No.1 on 19th of this month at 11-00 a.m. When the parties shall appear. Respondent No. l will decide the issue through a speaking order within one week from the date of hearing.