KARACHI: Pakistan Custom MODEL CUSTOMS APPRAISMENT AND FACILITATION WEST, is likely to file Civil Petition for Leave to Appeal (CPLA) before Supreme Court of Pakistan challenging an order by passed on 07/06/2024 by a two-member bench of High Court of Sindh while hearing a “Review Application “filed by M/S China Textile Curtains & Blanket Industry & another under section 114 of the CPC for review of order dated 30.4.2024. The review application was filed in CP-D 1705 of 2024.
The instant case has become a unique example wherein a bench of High Court of Sindh, has passed order beyond real facts, circumstances and background of the main controversy, ignoring record submitted by Pakistan customs MCC appraisement West, besides comments and counter affidavit .
The petition and review application was passed by a company “stranger” to 28 consignments which were originally imported by M/s Premium Textile Blanket Industry, Bara Bazar District Khyber (KPK). While the consignments were arriving, Custom Authorities have suspended the Export Facilitation (EFS) Authorization of the importer M/s Premium Textile on charge of “mis-use of such authorization”, followrf by a show cause notice & CANCELLATION ORDER dated. 14/03.2024 was passed by MCC Peshawar. Two FIRs No 03/2024 & 04/2024 were also lodged. The lodging of FIRs was challenged in Writ Petition No 1107-P/2024 before Peshawar High Court. The Post Clearance Audit (PCA) Collectorate vide PCA Alert dated 22.2.2024 on ground to stop further misused of clearance system and EFS facility, requested Appraisement Collectorates of Custom Port Muhammad Bin Qasim, East and South (SAPT) to block consignments manifested or GD filed in the name of Premium Textile Blanket Industry.
M/s China Textile Curtains & Blanket Industry & another’s, in their petition sought amendment in (IGM) Import General Manifest on plea that original consignee Premium Textile has not made payments to the shipper and being owner, shipper offered the same goods to the China Textile who accepted the same and applied for change / amendment in the IGM. The shipper no where at any stage showed its appearance before authorities, nor provided any authority letter to China Textile declaring them to be a consignee party.
The SHC bench issued pre-admission notice for 05.4.2024 to the respondent custom collectorates seeking comments and direction to consider the request of the petitioner company.
The following order was passed by the bench on 30.4.2024.
“The counsel for petitioner seeks urgency. Prima facie there seems no ground for seeking urgency as the matter is already fixed for 07.5,2024 as Date by Court. However today, Mr Khalid Mehmood Rajpar has shown appearance, files comments along with annexures on behalf of respondent No 2 and submits that instant petition is misconceived and not maintainable whereas the request of the Petitioner is the amendment in IGM has already been declined and a FIR has been registered against the importer and the matter is pending for adjudication before the Adjudication, Peshawar. Such comments are taken on record.
In view of the facts and circumstances of the case instant Petition is disposed of with the directions to the Petitioner to seek appropriate remedy before the appropriate forum in accordance with law”.
Aggrieved by this order M/s China Textile filed a review application under section 114 of the CPC and got notice issued on 10th May 2024, wherein counter affidavit was filed by Appraisement west.
In the review petition it was maintained that under section 45 (2) of Customs Act read with section 138 of the Customs Act, consignee has the right to request for the change of consignee name. It was further pleaded that the subject goods are neither the part of any FIR / Criminal Proceedings nor otherwise any adjudication proceedings are pending in respect of the subject goods. It was alleged that Respondents have mislead the court by stating that the goods are involved in the Adjudication before the Peshawar Custom Authorities.
Interestingly Javed Farooqui Advocate appearing for the Petitioner/Applicant at Review Application Stage taking the plea that at the time of passing of order dated 30.4.2024, he was given no time to go through the comments and order was passed. The counsel prayed that said order dated 30.4.2024 be recalled and modified as not being sustainable. It is notable that the order was passed in very presence of the counsel for Petitioner and therefore plea of want of time was not available to him.
The reliance on section 45 (2) and 138 of Customs Act is also force less as both these sections are not applicable in the instant matter. The section 45(2) applies in cases of obvious error in import manifest or arrival of goods accidental or inadvertently and in such a case a custom officer is empowered to amend or accept ‘supplementary import manifest against a fee determined by the “Board”. The section 138 pertains to “Frustrated Cargo” i.e goods brought to a custom station by reason of in-advertence, misdirection or un-traceability of the consignee or where a consignee has dishonoured his commitments.
The review application was fixed before a bench headed by Justice Zulfiquar Ahmed Khan & Justice Mubeen Lakho sb, but the counsel for petitioner sought adjournment. On one another occasion adjournment was requested and granted and finally the case was fixed before the bench which passed final order on 07.06.2020.
The following order was passed by the bench headed by then Chief Justice Aqeel Ahmed Abbasi with Justice Abdul Mubeen Lakho as member
“After hearing the counsel for the parties and from perusal of record and the provisions of Section 45 read with Section 138 of the Customs Act 1969, it appears that contentions of the counsel for the Petitioner appears to be correct whereas the petitioner has made out a case seeking review of order dated 30.4.2024 which appears to have been passed on account of incorrect factual position intimated by the counsel for Customs Department. Admittedly, in the instant case, subject consignment is lying at the Port whereas the request of the petitioner’s seeking amendment in the IGM in terms of section 45(2) read with section 138 of Customs Act 1969 which have been decided by the custom authorities without assigning any reason. It has also come on record that subject consignment in respect of GD could not be filed on account of inaction on the part of custom authorities who have not allowed the change of name of the consignee in the IGM in spite of the fact that all relevant documents including original Bill of Lading, commercial invoice, certificate of origin, packing list etc available with the petitioner and there seems no legal impediment to allow the amendment in the IGM while changing the name and address of the consignee in terms of Section 45(2) read with Section 138 of the Customs Act 1969. Prima facie the case of petitioners is covered by the aforesaid judgment of this Court. Accordingly review application bearing CMA No 10072/2024 is allowed and consequently petition is disposed of with the directions to the respondents to decide the application of the petitioner seeking amendment in IGM in the aforesaid terms and submit compliance within a period of two weeks from the date of receipt of this order”.
The bench also allowed a request for issuance of “delay detention certificate as consignment was not being allowed by the custom authorities. Order accordingly”.
It is a matter of record as reflected from orders sheet that Khalid Mehmood Rajpar was not present before the court and Muhammad Afzal Advocate held brief for him. This establishes that counsel for key respondent i.e Collectorate (Appraisement) West was not heard nor counsel for MCC East was present in hearing when an exparte order was passed. Instead of adjourning the matter, the bench proceeded with the matter depriving customs counsel from chance to rebut allegation of misleading the court.
The instant case is a classic example when procedure and rules of High Court were circumvented and abused and fixation of case/ petition/ review application was managed. The petition was filed through an advocate who could not appear before the regular Custom Bench. As a result, it was to be fixed before another bench headed by Chief Justice and while fixing it before the said bench, office of the court despite knowledge, ignored that counsel appearing in the review application is/ was a panel mate of Chief Justice when both were practicing on Income Tax/ Inland Revenue side.and thus petition could not be fixed before said bench legally, ethically and as per Sindh Chief Court Rules. The third bench available was to be headed by Justice Zulfiqar Ahmed Khan and matter was twice fixed before him but on both occasion, counsel for petitioner ran away seeking adjournment on one or another ground. Lastly the petitioner side succeeded in getting the matter fixed before the bench and got favourable order, while the two sections relied i.e 45 (2) and 138 relied upon by the petitioner are of no assistance and above all the case law relied upon by the bench has facts different from present petition and not identical. The identical controversy has already been decided through a detailed judgement passed by Justice Muhammad Shafi Siddiqui in M/s Al-Hamd Steel Furnace Versus Federation of Pakistan & others reported in 2021 PTD 1858 holdoing that “Wherein it has been held in 100% like nature case that “Necessary amendments in the Import General Manifest (IGM) are being sought by the petitioner under section 45(2) of Customs Act, 1969. Section 45 in substance deals with delivery of manifest in a conveyance under section 43 and 44, as the case may be, which manifest is required to be signed by the person-in-charge of the conveyance or by his duly authorized agent. Such manifest deemed to have contained and specify all goods imported in such conveyance. Subsection (2) of Section 45 relates to appropriate amendment in the manifest. This subsection provides that the appropriate officer shall permit the person incharge of a conveyance or his duly authorized agent to correct any “obvious error” in the import manifest or to supply any omission which in the opinion of such officer is a result of an accident or inadvertence, by furnishing an amended or supplementary import manifest or by making an amendment electronically and shall levy thereon such fees as the Board from time to time directs” this judgement has also been ignored which is in field as it was not challenged before Supreme Court.
It is now for Pakistan Customs department to decide that whether it can fight the twin menace of money power of an importer and abuse of process, procedure and rules of High Court, if it wants to save public coffers from tax evasion amounting to billions of rupees by just one importer.