' ZAHID KURBAN ALVI, J.---Through this petition the petitioner has prayed for the following relief:-
(a) Direct the respondent No,1 to desist from interfering with consignment of the petitioner;
(b) Direct the respondent No, 1 to send the file of the petitioner to the department customs in the Appraisement Group for the release of the petitioner's free list goods in accordance with law; and declare that the action of the respondent No, 1 and/or his subordinate to be;
(c) Without lawful authority; and (c-) Declare the cancellation of the Import Permit as illegal and direct the restoration of the Import Permit;
(d) Direct the respondent No,1 to desist in action in an unlawful manner; (d-I) Declare that the F.I.R. Is without jurisdiction, mala fide and quash the same.
(e) Grant any other relief and/or reliefs which are available to the petitioner and are just and proper in the circumstances of the case with costs of the petitioner.
2. Briefly, the facts giving rise to this petition are that the petitioner returned back after three, years from UAE. Before his return he booked a cargo under the nomenclature personal effects 14 cartons, containing television sets and audio and video cassettes alongwith some other electrical goods.
The said consignment arrived at Karachi on vessel M.V. Liberta on 6-11-1991 which was lodged with the Customs Authorities on the same day. On the arrival of the consignment the petitioner tried to obtain necessary import licence from CCI & E and wrote a letter to Shipping Company not to destuff his cargo since their documents for clearance were incomplete and they in turn informed Traffic Manager, Karachi Port Trust ("KPT"), vide its Letter No, Nil dated 12-11-1991 not to destuff the petitioner's consignment till further instructions. The CCI & E issued an Import Permit to the petitioner on 29-8-1992 bearing No, I.P.
316923. After the procurement of the said licence the petitioner was informed that Collector of Customs had confiscated the goods imported, vide his Order No, S.I.B. 56 of 1992 dated 3-8-1992. It is the case of the petitioner that he was unware of the proceedings before the respondent No,3 and obtained a copy of the said order, whereafter, the petitioner filed an Appeal before Member, (Judicial) CBR, (respondent No,2) who remanded the same to the Collector (Preventive)
(respondent No,1) for de novo consideration after hearing the petitioner (appellant).
3. It is alleged in the petition that the petitioner approached the respondent No, 1 for release of his consignment as normal valid import upon payment of duty and taxes since he was in possession of valid import licence. Thereafter, the petitioner came to know that the respondent No, 1 is persistently demanding of CCI & E to cancel the import licence issued to the petitioner and is delaying the matter to release the petitioner's consignment.
4. We have heard Mr. Muhammad Saleem Samo, learned counsel for the petitioner. For the last three dates respondents have remained unrepresented. On the last date of hearing also position was same.
5. It is contended by the learned counsel that the respondent No, 1 cannot question the validity of the import permit once it is produced before him and it is incumbent upon him to release the goods imported upon payment of duty and taxes and the respondent No,1 has no authority to confiscate the goods of the petitioner. He has further urged that the action of respondent No,4 canceling the permit is illegal, ultra vires and without notice to the petitioner and also without application of mind inasmuch as the department which had issued the import permit is no more in existence and, therefore, no action was taken upon the letter dated 17-10-1992. The action taken by the respondent No,4 is upon the directions of respondent No,
1. Even otherwise the import permit once issued after huge payment of fee, has created vested right and cannot be cancelled. It is further argued that no notice under section 171 of the Customs Act, 1969, was ever issued to the petitioner which is mandatory requirement of law. The respondent No,2 vide his order has ordered de novo consideration of the petitioner's case in the light of the import licence obtained by the petitioner. The respondent No,1 cannot go behind the import licence issued nor can he ask the CCI & E to cancel and /or withdraw the licence issued to the petitioner. The petitioner informed the respondent No,4 not to destuff petitioner's cargo as the documents were incomplete and they had in turn informed Traffic Manager, KPT. The respondent No,1 has acted illegally, unlawfully and without lawful authority in confiscating the goods of the petitioner after the import licence having been produced before him and he had no authority and/or power vested in him to question the legality of the import permit. The F I.R. Lodged by the respondent No,1, is meant to circumvent and defeat the petitioner's lawful right.
6. To support his contention Mr. Muhammad Saleem Samo, learned counsel for the petitioner, has relied upon the case of Mrs. Amna Bibi v. Islamic Republic of Pakistan (PLD 1981 Karachi 690) and the case of Shamim Textile Mills Lahore v. The Republic of Pakistan (PLD 1972 Lahore 572).
7. We have perused the material placed on record. The order passed by the Collector of Customs on 26-5-1993 shows that the order passed by the respondent No,1 in Order-in-Original No,818/56/92 on 8-8-1992 does not suffer from any legal or factual infirmity. However, in view of the import permit produced by the petitioner the Central Board of Revenue felt that the case needed re-examination and was remanded to the respondent No,1 for de novo consideration after hearing the petitioner. With the above observations the appeal was disposed of.
8. Thereafter, an order was again passed by the respondent No,1 dated 26-5-1993 whereby after going through the facts and other law he gave a finding that the petitioner obtained the import permit by wilful suppression of facts and through fraudulent means; According to the respondent No,1 since the import permit was obtained through fraudulent means it had no sanctity in the eyes of law and as such the same cannot be accepted. The seized goods were, therefore, ordered to be confiscated. The learned counsel for the petitioner insisted that there was no provision available under the law, for the respondent No,1 not to accept the import permit produced before him. In case if any document was fraudulently obtained then the same could only be cancelled and/or action taken by the Authority, who had issued the same. The Customs was duty bound under the law to see whether it was a valid and genuine import permit. Once they were satisfied then they had to take action according to law. It is not the case of the respondent No,1 that the document was not a genuine document. It is the case that it was fraudulently obtained or through misrepresentation. That regrettably is not within the purview of the respondent No, 1.
9. By our short order dated 3-10-2001 we had allowed this petition and above are the reasons for the same. The application (C.M.A. No,1695 of 1998) has become infructuous.