' In this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has challenged the notice issued by the respondents under section 202(2) and (3) of the Customs Act, 1969 demanding a payment of Rs,5,35,500 from the petitioner failing which it has been notified that coercive measure shall be taken against the petitioner like the attachment and sale of the immovable property and appointment of receiver for the management, of movable and immovable property.
2. This petition was admitted to consider the contention raised by the learned counsel for the petitioner that before the expiry of limitation for filing an appeal no coercive measures can be taken against the petitioner. In support of this contention learned counsel for the petitioner has relied upon proviso to subsection (3)(d) of section 202 of the Customs Act, 1969 which was introduced by the Finance Act, 1999.
3. Mr. Khan Muhammad Irk learned counsel for the respondent has on the other hand contended that the proviso is only applicable to a case where arrest and detention of the defaulter is contemplated.
4. In order to appreciate the contentions of the learned counsel for the parties it is necessary to reproduce section 202 as amended by the Finance Act, 1999 which is as under:-- "202. Recovery of Government dues.-- (1) ....
(a) ....
(b) ....
(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 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) may recover, or may require any other officer of Customs, Central Excise or Sales Tax to recover, if it cannot be so recovered, such amount by detaining and selling any goods belonging to such person which are under the control of the Customs, Central Excise or Sales Tax Authorities; or
(c) may recover such amount by attachment and sale of any movable and immovable property of the guarantor, person, company, bank for financial institution, where a guarantor or any other person, company, bank or financial institution fails to make payment under such guarantee, bond or instrument; or
(d) arrest of the defaulter and his detention in the prison for a period not exceeding fifteen days: ' Provided that this mode shall not be applied unless the period of limitation prescribed for filing appeal has expired, or an appeal is pending.
5. On the face of it, the proviso applies only to action under clause (d) of subsection (3) of section 202 and has no applicability to other modes of recovery provided in clauses (a), (b) and (c) of subsection (3). Mr. Irfan Qadir, however, submitted that proviso was applicable to all the sub- clauses of subsection (3) and not to clause (d) alone. This argument cannot, however, be accepted in view of clear language of the proviso which uses the words "this mode" i,e, in singular and as such the proviso would apply to the mode provided in clause (d) which immediately precedes the proviso and not to other clauses.
' In this view of the matter, this petition has no force. It is accordingly dismissed leaving the parties to bear their own costs.