KARACHI: Pakistan Customs lost another case on technical ground as the Special Custom Appellate Tribunal allowed an appeal by a Japanese national, co-owner of Hongda Trading Company, Pakistan.
The appeal was allowed on the ground that any show cause or action against mis-declaration or contravention fells within the jurisdiction of the Collectorate of Customs (Adjudication) and not Executive Collectorate or Collectorate of Customs Export in this matter.
The case pertains to the alleged attempt to export a consignment declared“Fish maw”while in fact the consignment comprised of 4342 turtle skulls, plastrons and fringes weighing 1.90 tons. The exporter/appellant declared the value to be of rupees 1.3486 million allegedly committing gross under invoicing as the value ascertained was to the tune of rupees 616.564 (in the light of Sindh Wild Life Department value advice). It was also alleged that exporter tried to export the banned items, which may have caused extensive damage to the reputation of Pakistan.
The customs issued a show cause notice to the appellant and referred the matter to the Collector of Customs (Adjudicating Authority), Model Customs Collectorate of Exports who adjudicated the matter holding that turtles are an endangered species and poaching , catching, trapping netting, using as a whole or derivatives, transporting and export has been strictly prohibited as per various indices of the Convention of International Trade in Endangered Species of Wild Fauna and Flora (CITES).
The adjudicating officer also noted that postal address declared on GD, NTN, and STRN was also found fake and further establishes the criminal intent of the exporter/appellant. A penalty of rupees 25 million was imposed upon Hongda Trading Company including its owners and beneficiaries. The customs was also ordered to destroy the consignment by a joint team of Customs Collectorate and Sindh Wild Life Department and Marine Fisheries Department.
The exporter assailed the order of the Collector Customs before the Special Customs Tribunal Bench 1 through their counsel Sardar M Ishaque advocate. The counsel raised the basic question of jurisdiction assumed by the Mckeesport and contended that by issuing show cause and passing order in original, the Collector of Custom (Exports) usurped the powers vested in Collector of Customs (Adjudication II) rendering the entire action against the appellant as illegal and Coram non juice.
Sardar M Ishaque advocate also questioned the composition of the confiscated consignment maintaining that the confiscated material also included 2012 kilogram of dried fish maw and fish skin which cannot be seized as these are allowed to be exported freely. He also contended that instead of invoking section 2 of the Export Policy Order ,2013 section 32 of the customs act which has no nexus with the confiscated goods was invoked.
Choudhry Muhammad Younis advocate , counsel for respondents including Collector Customs (Adjudication), Deputy Collector Customs (Examination KICT) and Conservator Wild Life rebutting the arguments by the customs officers prayed to the court to hold that appellant/exporters miss-declared the value and nature of contents of the consignment.
The attempt to export a banned items falls within the section 2 (s) of Customs Act 1969 and thus liable to be punished.
The tribunal however noted that custom authorities erred when they failed to invoke a relevant clause and instead issued notice and show cause under section 168 (1) and 171 of the Customs Act 1969.
The tribunal also rejected the plea by the appellant that his partner Ali Ahmed Soomro was responsible for mixing of fish skin with skulls of turtles and other parts and said it was the responsibility of the appellant to keep a check on partner and other employees. The tribunal also observed that a harsh penalty was imposed upon appellant.
The tribunal also noted that Export Policy Order 2013 does not mention the parts and articles whatsoever permits dealing to mammals and reptiles and as such, there is no embargo on their export.
The tribunal relying on judgments by the Supreme Court of Pakistan and own observations allowed the appeal while remitting the penalty imposed on the appellant, also to release the confiscated consignment with delay detention certificate.
The alleged banned item Turtle shells are considered an essential part of the Eastern medicines and consignment detected, detained worth billions of rupees in open international market. A technical error by Custom officials resulted in loss of the case as well as revenue of 650 million to the exchequer.