KARACHI: The hearing of a suit filed by Messer’s Cosmix Engineering against Pakistan Customs, Appraisement, West (AIB) and others till Jan 24 after counsel for respondents Sardar Zafar Hussain Advocate filed Counter Affidavit.
A respondent Deputy Collector (AIB / R&D) in the Model Customs Collectorate of Appraisement (West), Custom House, Karachi in his counter affidavit stated that the suit is barred under Section 217 of the Customs Act, 1969. The suit is therefore liable to be dismissed under Order 7 Rule 11 C.P.C.. The respondent relied on following rules.
Sec 217: Protection of action taken under the Act.- (1) no suit, prosecution or other legal proceeding shall lie against the Federal Government or any public servant for anything which is done or intended to be done in good faith in pursuance of this Act or the rules and notwithstanding anything in any other law for the time being in force no investigation or enquiry shall be undertaken or initiated by any government agency against any officer or official capacity under this Act, rules, instructions or directions made or issued there under without the prior approval of the Central Board of Revenue.
(2). No suit shall be brought in any civil court to set aside or modify any order passed, any assessment made , any tax levied, any penalty imposed or collection of any tax made under this Act.
3. The said contentions of all the parties were heard at length regarding the maintainability of Suit and Honorable Supreme Court of Pakistan observed vide judgment dated 27.06.2018 in case of M/s Searle IV Solution (Pvt) Ltd and others v/s Federation of Pakistan & others (2018 SCMR 1444), and directed that:-
7. The suits, which are already pending or shall be filed in future, must only be continued/entertained on the condition that a minimum of 50% of the tax calculated by the tax authorities is deposited with the authorities.
The respondent further submitted that as directed by the Honorable Apex Court the plaintiff has not deposit the 50% of the total evaded amount of duty and taxes Rs. 20,659,606/-. It is further submitted that the plaintiff filed Constitution Petition on same cause bearing No. CP D 6212/2024 which was not pressed vide order dated 12.12.2024 (Annexed at page 33 of the Plaint) and stated that the petitioner will file fresh petition and amended the prayer clause. No fresh petition has been filed by the petitioner and filed this suit which is not maintainable. It is further submitted that the plaintiff already filed Complaint before learned FTO bearing No. FTO-11223/KHI/CUST/2024 dated 12.12.2024 (Annexed at page 51 of the Plaint), hence this suit is liable to be dismissed alone. It is further submitted that the answering respondent lodged FIR No 12/2024-AIB-(AW) (Annexed-A) and registered before the Special Judge (Customs) Karachi.
The respondent averred that M/s Cosmix Engineering (NTN 2934193) filed Goods Declaration No. KAPW-HC-82319 dated 27-11-2024 (Annexed-B) for clearance of consignment declared to contain: (i) 22 Outdoor units of Air Conditioners of assorted capacities, & (ii) 130 indoor units of Air Conditioners of assorted capacities, under HS Code 8415.1029 at total invoice value USD 22,934/- To check whether the importer has correctly declared the description of goods and paid correct amount of duty & taxes, Goods Declaration was marked for examination by the system under Section 80 of the Customs Act. 1969. Upon physical examination, it was observed that the model numbers affixed to the Air Conditioners could not be verified through the OEM website or any international website, despite the manufacturer being one of the largest in the world. Furthermore, original BTU plates confirming the specifications and capacities of the units were not found on any of the goods. To verify the capacities, the importer was asked at the examination stage to provide the manufacturer’s catalogue. However; the scanned catalogue submitted could not be corroborated with any information from the OEM website or other reputable international sources. Further scrutiny of the submitted documents raised serious concerns about their authenticity and prima facie appears that they were not genuine OEM documents. Key observations in this regard include metadata of the submitted catalogue files indicates they were created on 27.11.2024 by a user named Zeeshan using PowerPoint. This is highly unusual for documentation purportedly originating from a reputable OEM.
The critical technical information, typically found on authentic OEM datasheets from the same manufacturer, was absent from the submitted catalogues. The website mentioned on the catalogues, allegedly for Guangzhou Wenhui Trading Co., Ltd, appears to be fabricated. It seems to have been generated using WordPress, featuring incomplete “lorem ipsum” placeholder text. The provided address, ’66 Brooklyn Street, NY’, is dubious and does not align with the standards expected from a global manufacturer.
A domain age check revealed that the website was created barely 9-10 days ago, further casting doubt on its legitimacy and raising concerns about the accuracy of the declared specifications and capacities of the goods.
The court was informed that In view of aforementioned discrepancies, the goods were examined with the assistance of technical experts and indoor & outdoor units of Air Conditioners of following capacities were reported. The NED University of Engineering & Technology, Karachi on the basis of their visit dated 15.12.2024 (Preliminary Inspection) and 19.12.2024 confirmed the cooling capacity of the Air-conditioner units vide their Technical Assessment Report dated 26.12.2024 (Annex-C)
It was alleged by the department/ respondents that by way of grossly mis-declaring the capacities of the goods, importer along with clearing agent and other accomplices, tried to deprive the national exchequer from its due revenue to the tune of Rs. 20,659,606/-. This deliberate act of importer & accomplices constitute an offence within the meaning of Section 32 (1), 32 (2), 32A, 79(I) & 209 of the Customs Act, 1969 read with Section 33 of the Sales Tax Act, 1990, Section 148 of the Income Tax Ordinance, 2001. The Offence is punishable under Clause 1, 14, 14A & 45 of the Section 156(I) of the Customs Act, 1969, Section 33 of Sales Tax Act, 1990 & Section 148 of the Income Tax Ordinance, 2001.
The Court was requested to reject the application, under reply and the suit is not maintainable and barred by time, in the interest of justice & equity.