DECISION /RECOMMENDATION ' The case has been considered but Dr. Sadiquallh Khan states that as the department has sought legal opinion on the legal issues involved in it some time may be granted to the department to enable it to present the case properly. However, Dr. Maqbool Islam pointed out that the complainant had imported chemical in September 2002 whose life will expire by the end of this month. The Customs Department did not allow to file the bill of entry earlier as a notice under section 202 making a demand of Rs,8,04,652 was issued and placed with the department but not served on the complainant. He further pointed out that the bill of entry was filed on 8-10-2002 and no sooner duty and tax were assessed they were paid on 23-10-2002 and now notice has been served on clearing agent. In these circumstances he requested that the goods may be released, as the demand and detention of the goods are illegal. This is a new phenomenon in the case as such action has been taken after the complaint had been -filed and the case is under consideration. It will be considered later whether this action was bona fide.
2. On query Dr. Sadiqullah Khan stated that the demand for Rs,8,04,652 has been raised in respect of Regulatory Duty under S.R.O. 108(1)/95, dated 12-2-1995. In this regard a copy of the letter of Deputy Collector, dated 29-10-2002 has been placed on record addressed to the Assistant Collector (Recovery) stating that examination of the record reveals that the complainants have cleared their raw material on 25% compensation quota granted by C.B.R., Islamabad and request has been made that the case be re-examined in the light of Hon'ble Supreme Court of Pakistan Judgment, dated 16-10-2002 in consultation with Assistant Collector (Legal Division) Custom House, Peshawar.
3.. Dr. Maqbool Islam has contended that in view of the Judgment of the Supreme Court of Pakistan in Ravi Spinning Mills and others and the High Court of Peshawar in Petition No, 1223 of 1995 filed by the complainant, which has been upheld by Supreme Court, it is clear that Regulatory Duty cannot be charged under S.R.O. 108 nor can it be imposed on 25% compensation on one time granted by ECC. His contention is that the judgments of both the Courts are clear and require no further clarification. In these circumstances he has requested that the consignment detained at the airport may immediately be released otherwise it will become completely useless and further that the demurrage charges should be waived as it has accrued due to illegal act of the Customs Department for which the complainant is not responsible.
4. During the hearing Dr. Sadiqullah Khan offered that the consignment will immediately be released on an undertaking by the complainant that if it is held that the Regulatory Duty is payable as demanded the complainant will pay the same. He has further offered that he would advise PIA the authority, which will charge the demurrage not to charge and release the consignment as, the matter, is under litigation. The representative of the complainant accepts this offer. The following interim order and recommendation is made with the consent of the parties that:---
(i) The consignment detained at the Peshawar Airport for the demand of Rs,8,04,652 be released immediately on submitting an undertaking by the complainant that if it is held that the Regulatory Duty as demanded is payable, the complainant would pay the same. As regards demurrage charges the respondent would, advise PIA not to charge as the matter is under litigation.
(ii) The request for adjournment by the learned representative for the department is granted.
(iii) Compliance be reported within 5 days.
5. The complaint, the intervening action of detention of goods, its bona fides and liability to pay demurrage will be considered and decided after the case is finally heard on a date which will be intimated to the parties.
' This order has been dictated in the presence of the representatives of the parties.