ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
C.P. NO. D-2423/2007
Date Order with signature of Judge
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03.3.2010
Mr. Muhammad Shafi Siddiqui Advocate for the petitioner.
Mr. Haider Iqbal Wahniwal Advocate for the respondent No.1 along with Dr. Basharat Ali Malik, Deputy Collector Customs/ alleged contemnor & Ilyas Ahsan Khan Appraising Officer
Mr. Abdul Hameed Iqbal Advocate for the respondent No.3.
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(1) to (4): By this petition the petitioner has challenged the order in original dated 25.6.2008 passed by the Assistant Collector of Customs (ACCS Adjudication), Model Customs Collectorate, Customs House, Karachi.
It appears that the petitioner has imported consignment of dry battery cells comprising of 1800 cartons. Out of the 1800 cartons 500 cartons were found to be infringing trademark and copyright of the respondent No.3 pursuant to which the Customs authority has taken an action and ultimately through the impugned order has made outright confiscation of the said 500 cartons of battery cells with imposition of personal penalty of Rs.50,000/- in terms of section 15 of the Customs Act, 1969.
It is contended by the Counsel for the petitioner that the Customs authorities had not made compliance of the provisions of sections 56 to 60 of the Trademark Ordinance 2001 inasmuch as the respondent No.3 who claims to be the owner of the trademark has not brought any action in respect of the imported consignment nor has it obtained any prohibitory order and that in the absence of any action, the Assistant Collector's order of outright confiscation of the petitioner's consignment was not legal.
Mr. Haider Iqbal Wahniwal learned Counsel for the respondent No.1 has contended that the Customs authorities had made due compliance as it has obtained report not only from the Trademark Registrar but also from the Copyright Right authorities and after such inquiry in which the petitioner also participated has passed the order. He, however, admits that the respondent No.3 had not produced any order with the Customs of an action as contemplated in section 57(b)(iii).
Mr. Abdul Hameed Iqbal Counsel for the respondent No.3 states that the respondent No.3 has already filed Suit No. 375/2008 in this Court against the petitioner in which some interim order has also been passed. He has, however, not attached copy of any interim order with the counter affidavit of the respondent No.3.
We have given anxious consideration to the matter and apparently though the Customs authority in terms of sections 15 and 17 is entitled to take action against the importer of prohibited goods but in doing so it has to follow the legal procedure as provided in the Customs Act so also in the Trademark Ordinance 2001. The record apparently shows that the procedure of issuing of notice to the petitioner for making confiscation for making infringement of sections 15 and 17 of the Customs Act has not been issued by the Customs authorities and further the respondent No.3 has also not brought before the Custom authorities the order as contemplated in section 57(b)(iii). In the wake of such non- compliance of the legal provision, we are unable to subscribe to the view taken by the Assistant Collector of Customs in the impugned order which apparently seems to be not supported by law, consequently, we set aside the same with direction to the Customs authority to start the proceedings de nova and issue the show cause notice to the petitioner. At the same time the respondent No.3 will also be free to initiate action as contemplated in law and with the consent of the Counsel for the petitioner time period for initiating action is condoned which will start from the date of passing of this order.
The petition along with the listed application stands disposed of.
J U D G E
J U D G E
A.W.Gabol/PA