ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI.

C. P. No.D-2899 of 2013

Present: Mr. Justice Syed Hasan Azhar Rizvi,

Mr. Justice Muhammad Junaid Ghaffar.

Umer Farooq …………….. Petitioner

Versus

The Federation of Pakistan & others ………….. Respondents

Date of hearing: 29.10.2013 & 31.10.2013.

Date of Order: 27.11.2013

Petitioner: Through Mr. Muhammad Kaukab Sabahuddin, Advocate.

Respondents: Mr. Kashif Nazeer, for Respondents No.2 to 6 along with Mr. Ilyas Ahsan, (Law Officer), Mr. Saeed Ahmed Memon, Standing Counsel.

O R D E R

MUHAMMAD JUNAID GHAFFAR, J: Through this petition, the petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 and has prayed as follows: -

i. Direct the respondents to immediately allow the shipment of the container which has been detained unlawfully in violation of the provision of section 131 of the Customs Act, 1969 since 07-05-2013.

ii. Declare that the impugned notices issued by Respondent No.5 are illegal, without authorization by the competent authority under the law and thus ab-initio void and of no legal effect, thereby quash the same.

iii. Direct the Respondents to disclose the details of inquiry / investigation so far conducted which requires the furnishing of the requisite documents by the Petitioner and requires information from the Petitioner.

iv. Prohibit / restrain the Respondents jointly and severally or through their agents, employees and servant or any one claiming through them from taking any adverse or coercive action on the basis of impugned Notices against the Petitioner or its employees and from initiating any criminal proceeding and from harassing them in any manner whatsoever.

v. To suspend the operation of Impugned Notices till the decision of this Petition.

vi. Grant such further relief which this Honourable Court may deem fit and proper in the circumstances of the case including the cost of Petition.

2. Briefly the facts giving rise for filing of the instant petition are that the petitioner is engaged in manufacturing and export of textile products and the respondent No.2 after carrying out due registration has allocated Unique User Identifier (“User ID”) enabling the petitioner to file its Goods Declaration (“hereinafter referred to as “G.D.”) electronically. It is averred by the petitioner that a G.D. for the export of 100% Cotton Dyed Terry Towels weighing 5,500 KG at a total declared value of US$ 5,500/= was filed electronically before the office of respondent No.2. It is stated that the goods covered by the aforesaid G.D. were examined by the staff of respondent No.2 and the assessment was made on 07.05.2013. According to the petitioner such assessment order (annexure “A”) was complete in all respect and also had an endorsement of “Assessment Completed”. It is further averred that subsequently after the assessment was completed, the container carrying goods being exported was detained by respondent No.5 without disclosing any reason thereof. It is the case of the petitioner that such detention was unlawful and the goods being exported by the petitioner should have been allowed to be exported as no discrepancy was found during the examination of the goods as well as at the time of assessment of G.D. It is further averred that subsequently on 12.06.2013 three different notices (“impugned notices”) were issued by the respondent No.5 purportedly under Section 26 of the Customs Act, 1969 out of which one was addressed to the Petitioner’s Bank, and the other two, to the petitioner. Through these notices, the petitioner and its Bank were required to furnish documents relating to the goods already exported by the petitioner since March, 2013, however, according to the petitioner these notices were vague in nature and no specific detail w.r.t the shipment details or to the nature of the enquiry was mentioned in these notices. It is further stated that the petitioner tried to approach the relevant authorities for the release of the detained container, but having failed to do so, the instant petition was filed as the petitioner was suffering huge financial losses in the shape of port charges, container charges, besides being unable to meet the export deadline.

3. Respondents No.2 & 4 to 6 have jointly filed parawise comments and according to the respondents the petitioner has indulged in undervaluation of the goods being exported and is misappropriating precious foreign exchange of the country by declaring the value of the goods as low as US $ 1.0 per KG, whereas according to the data available with the department in respect of other exporters of the same category of goods, the average export value of such goods is in between the range of US $ 4.50 to US $ 6.0 per KG. It is the case of the respondents that the value declared by the petitioner is even less than the basic raw material (Cotton Yarn) which is in the range of US $ 2.50 to US $ 3.50 per KG. It is also the case of the respondents that since the rate of duty draw back on export of instant goods is minimal, some unscrupulous exporters like the petitioner are exporting goods of higher value by declaring less value through official channel and thereafter they repatriate the balance export proceeds through illegal and unlawful means and this amount to money laundering. According to the respondents the petitioner has contravened various provisions of the Customs Act, 1969, and only notices under section 26 of the Customs Act were issued, seeking information from the Petitioner and its Bank. However before any action could be initiated against the petitioner, the instant petition has been filed and further proceedings in respect of the petitioner’s consignment are in abeyance at present.

4. According to Mr. Muhammad Kaukab Sabahuddin, learned counsel for the petitioner, the action of the respondents was malafide and without any jurisdiction as the G.D. filed by the petitioner was examined as well as assessed by the respondents, and as such, detention of the container was unlawful and cannot be sustained. Per learned counsel, it came to the petitioner’s knowledge that the container was detained by the respondent No.5 to recheck assessed value of the consignment, which according to the learned counsel was without any jurisdiction and lawful authority. It was further argued that since no export duty was leviable on the export of the subject goods, as such the question of value or its reassessment does not arise. Per learned counsel neither there was any violation of section 15 or 16 of the Customs Act nor the provisions of Section 17 of the Customs Act, 1969 were applicable in the instant matter and as such the impugned action of the respondents was liable to be declared as nullity in the eyes of law. Learned counsel for the petitioner also referred to the preamble of the Customs Act, 1969 and contended that the impugned action was even outside the domain of the Act itself, as the primary duty of the Respondents under the Customs Act 1969, is to collect the duties and to prevent smuggling. Per learned counsel since neither any duty was involved in the matter nor any attempt of smuggling was alleged by the respondents, as such the impugned action of detention of the container was beyond the scope of the Act itself. Learned counsel also referred to the provisions of Foreign Exchange Regulations Act, 1947 (hereinafter referred to as “F.E.R.A., 1947”) and contended that it is only the State Bank of Pakistan which is the appropriate authority in terms of subsection (5) of Section 12 of the F.E.R.A., 1947 to initiate an action if any dispute of valuation in respect of exported goods arises. In support of his arguments, learned counsel for the petitioner has relied upon 2002 M L D 130 (Union Sport Playing Cards Company v. Collector of Customs and another), P L D 1992 SC 485 (Assistant Director, Intelligence and Investigation, Karachi v. M/s. B.R. Herman and others) and P L D 1996 Karachi 68 (M/s Kamran Industries v. The Collector of Customs (Exports) and others).

5. Mr. Kashif Nazeer, learned counsel for the respondents No.2 to 6, ably assisted by Mr. Ilyas Ahsan, the Law officer, has contended that the Customs Authorities can refuse and detain goods of the petitioner if the value declared therein is not correct and such authority is derived from Section 25(15), 32, 32-A and 131 of the Customs Act, 1969. The learned counsel contended that in terms of Section 131 (1)(c) of the Customs Act, 1969 the Customs Authorities are entitled to satisfy themselves as to whether an appropriate declaration of goods has been made by the exporter and such satisfaction also includes valuation of goods. It was further contended that in fact the petitioner has committed a fiscal fraud within the meaning of Section 32-A of the Customs Act, 1969. Reference was also made by the learned counsel to Section 16 of the Customs Act, 1969 as well as Section 186 which, according to the learned counsel for the respondents, allows the Customs Authorities to detain any goods in respect of which an enquiry was pending. It was further contended that since the Export Declaration Form “E” submitted by the petitioner was still to be accepted by the Customs Authorities, as such no assessment was finalized and it was within the competence and jurisdiction of the respondents to check and ascertain the correct value of the exported goods. Learned counsel for the respondents also referred to subsection (5) of Section 12 of F.E.R.A., 1947 and the Foreign Exchange Rules, 1952 (hereinafter referred to as “F.E.R., 1952”) as well as notification No.FE-1/98-SB dated 08.06.1998 issued in pursuance to Rule 3 of the F.E.R., 1952 which, per learned counsel, authorizes the Collector of Customs to check and ascertain the value of goods being exported. In support of its contentions, learned counsel has relied upon AIR 1991 Supreme Court 1061 (Toolsidass Jewraj v. Additional Collector of Customs and others), AIR 2003 Supreme Court 3581 (M/s. Om Prakash Bhatia v. Commissioner of Customs, Delhi) and a Division Bench Judgment of this Court in Customs Reference Application No.319 of 2012 (M/s Mehmood-Ul-Hassan v. The Additional Collector of Customs).

6. We have heard both the learned counsel and have examined the record with their assistance and the case law relied upon by both the parties.

7. It appears that the controversy in hand is, “as to whether the Respondents are authorized to determine and make an assessment of the value of the goods being exported even though no export duty is leviable nor any rebate or duty drawback is being claimed on such goods and whether in case of any violation thereof, any penal action could be taken against such exporter.” According to the case of the petitioner since the consignment in question was not liable to any export duty nor there was any violation of export restrictions as the goods were freely exportable, as such the Customs Authorities were required to accept the value declared by the petitioner in the export documents as well as Form “E” duly certified by the concerned Bank of the petitioner.

8. On the other hand, the case of respondents is that although no export duty was chargeable on the goods being exported, but even then, the respondents were lawfully authorized to assess the goods in terms of Sections 25 (15) and 131 of the Customs Act, 1969. The relevant provisions of Sections 25 (15) and 131 of the Customs Act, 1969 are reproduced as follows:

Subsection 15 of Section 25 of the Customs Act, 1969.

(15) Customs Value of exported goods.-- The customs value of any exported goods shall be the value at the prescribed time, on a sale in open market for exportation to the country to which the goods are consigned having regard to the following provisions, namely:--

(a) that the goods are treated as having been delivered to the buyer on board the conveyance in which they are to be exported; and

(b) that the seller will bear all packing, commission, transport, loading and all other cots, charges and expenses (including any [regulatory duty which may be chargeable under sub-section (3) of section 18]) incidental to the sale and to the delivery of the goods on board the conveyance in which they are to be exported and which will be included in the customs value;

(c) that where goods are manufactured in accordance with any patented invention or are goods to which any protected design has been applied, the customs value shall be determined taking into consideration the value of the right to use design in respect of the goods;

(d) that where goods are exported for sale, other disposal or use, whether or not after further manufacture, under a Pakistan trade mark, the customs value shall be determined taking into consideration the value of the right to use the patent design or trade mark in respect of the goods.

Explanation I.—A sale in open market between a buyer and a seller independent of each other presupposes—

(a) that the customs value is the sole consideration and sale is between a buyer and seller independent of each other.

(b) that the customs value is not influence by any commercial, financial or other relationship, whether by contract or otherwise between the seller or any person associated in business with him and the buyer or any person associated in business with him other than the relationship created by the sale itself.

(c) that no part of the proceeds of any subsequent resale, other disposal or use of the goods will accrue, either directly or indirectly, to the seller or any person associated in business with him.

(d) that two person shall be deemed to be associated in business with one another if, whether directly or indirectly, either of them has any interest in the business or property of the other or both have a common interest in any business or property or some third person has an interest in the business or property of both of them.

Explanation II.—For the purpose of the sub-section, the expression “prescribed time” shall mean the time when the goods declaration is delivered under section 131 or when export of the goods is allowed without a goods declaration or in anticipation of the delivery of a goods declaration, the time when export of the goods commences.

[131 Clearance of exportation.--(1) No goods shall be loaded for exportation until,--

(a) the owner of any goods to be exported has made a declaration in such form and manner as prescribed by the Board, by filing of goods declaration to Customs containing correct and complete particulars of his goods, and assessed and paid his liability of duty, taxes and other charges, if any;

(b) the claim of duty drawback, if any, has been calculated and reflected in the declaration filed for export through Customs Computerized System;

(c) customs has, on the receipt of goods declaration under clause (a), satisfied itself regarding the correctness of the particulars of export including declaration, assessment, and payment of duty, taxes and other charges and verified the admissibility of the duty drawback claimed as specified in clause (b);

(d) the appropriate officer has permitted passenger’s baggage or mail bags, to be exported notwithstanding clauses (a), (b) and (c).

(2) If any goods or class of goods imported and lying within the port area, are intended to be exported by its owner, the Collector may allow the export subject to the conditions as the Board may, from time to time, notify:

Provided that the Board may in the case of any customs station or wharf, by notification in the official Gazette and subject to such restrictions and conditions, if any, as it thinks fit, exempt any specified goods or class of goods or any specified person or class of persons, from all or any of the provisions of this section:

Provided further that the Collector, where Customs Computerized System has not been introduced for reasons to be recorded in writing, may cause the examination of goods or any class of goods or goods belonging to a particular exporter or class of exporters at a designated place as he deems fit and proper.]

9. On perusal of the above provisions of Section 25 (15) of the Customs Act, 1969 it appears that the customs value of any exported goods shall be the value at the prescribed time, (in terms of explanation II, the prescribed time as is relevant in this matter is the time when the G.D. is delivered under Section 131 ibid), on a sale in open market for exportation to the country to which the goods are being exported and having regard to the fact that the goods are treated as having been delivered to the buyer on board the conveyance; that the seller will bear all expenses incidental to the sale and delivery of the goods including payment of any duty chargeable thereof and such incidentals will be included in the Customs value; that where goods are manufactured in accordance with any patented invention or are goods to which any protected design has been applied, the customs value shall also include and take into consideration the value of the right to use such design; that where goods are exported for sale, other disposal or use, under a Pakistan trade mark, the value shall be determined taking into account the value of the right to use said trade mark in respect of the goods. There are two explanations also appended to the above subsections. Therefore, under this provision a complete mechanism has been provided for determination of the value of a consignment being exported, and unlike the concept of Transactional Value, as is in the case of imported goods, the value of exported goods under section 25(15) of the Customs Act, 1969, is primarily based on the concept of “open market” value of the goods at the prescribed time (see Explanation-II). The term “open market” has been further elaborated through Explanation-I, and has laid down the parameters, as to what is a sale in open market, between a buyer and a seller independent of each other. Therefore, it is explicitly clear, that in view of this specific provision regarding the method and mechanism for determination of value of an export consignment, the concept of Transactional Value is alien to such assessment or determination, hence the contention of learned counsel for the petitioner that the transactional value as has been agreed upon between the petitioner and its buyer should have been accepted, is devoid of any merits, and is hereby repelled. The value of a consignment being exported is not to be determined on the basis of its transactional value as prescribed under section 25(1), or under any of the other methods as contemplated under sub sections (5) to (8) of section 25 of the Customs Act, but strictly in terms of section 25(15) of the Act ibid. The former sections i.e. 25(1), (5), (6), (7) & (8) are only applicable and relevant, when assessment of Imported goods is to be done, whereas the latter i.e. section 25(15), applies in respect of exported goods. Therefore, we are of the view that the respondents are within their right in terms of Section 25(15) of the Customs Act, 1969 to determine and assess the value of any exported consignment as laid down therein.

10. Similarly when the provisions of Section 131 of the Customs Act, 1969 are perused, it is noticed that no goods shall be allowed to be loaded for exportation unless the owner of the goods has filed a declaration in the manner as prescribed by the Board; the claim of the duty drawback, if any, has been calculated and mentioned on the G.D. (though this is not relevant for the present purposes) and on filing of such G.D., the Customs Authorities are “satisfied” regarding the correctness of the particulars of export, which also includes the declaration in all respects, assessment and payment of due taxes and other charges and the verification of duty drawback claimed if any. It could be seen from the above, that the respondents can refuse the exportation of the goods until they are “satisfied” regarding the correctness of the declaration made by the exporters, which also includes assessment. The word assessment has been defined under Section 2(bb) of the Customs Act, 1969, and it includes provisional assessment, reassessment and any order or assessment in which the duty assessed is nil. Therefore, if the provisions of Section 25 (15), Section 131 (1) (c) and Section 2(bb) of the Customs Act, 1969 are read together, it could be said with certainty that in case of exports, the Customs Authorities are authorized under the Customs Act, 1969 to make assessment of the goods and consequently check the value of the goods being exported even in cases where no export duty is payable. The word satisfied as appearing in section 131(1)(c) of the Customs Act 1969, came under discussion before a Division Bench of this Court in the case of Mehmoodul Hassan (supra). In that case which was under its advisory jurisdiction through a Special Custom Reference Application under section 196 of the Customs Act 1969, the question amongst others was as to whether any exported goods could be examined in the exercise of any powers vesting in the appropriate Officer of Customs in terms of Section 131 of the Customs Act, 1969. The Court went on to interpret the word “satisfied” appearing in Section 131 (1) (c) of the Act ibid and held as under:

“13. Clearly, section 80(1) is similar to section 131(1) (c). To that extent, the two provisions parallel each other, one dealing with imports and the other with exports in the same terms. It is also correct that section 131 has no equivalent to subsection (2) of section 80. However, we are, with respect, unable to conclude that this is tantamount to an “omission” such that exported goods cannot be examined at all. It may be noted that section 80 was also substituted in its entirety by the Finance Act, 2005.. Before that, it stood in a very different form. We cannot see why or how customs officers can justifiably be deprived of the power or jurisdiction to examine goods being exported. In our view, the necessary jurisdiction exists, and must necessarily exist, in the word “satisfied” as relied upon by learned counsel for the Department. Since the two provisions are in parallel, it would also follow that such jurisdiction exists, and must necessarily exists, in respect of imported goods in the word “satisfied” as found in section 80(1), in our view, the other subsections of this section either explain or regulate or control the exercise of this jurisdiction. Thus, subsection (2) explains when and how the goods can be examined, while subsection (4) limits and regulates this power in relation to goods cleared through the Customs Computerized System. Inasmuch as no such provisions are found in section 131, it may appear that the power to examine exported goods, which is discretionary, is unregulated. However, this is not so at all. Even if discretionary power is not statutorily regulated, that does not mean that it is unfettered; in law, there can be no such thing. As the many judgments of the Supreme Court and the High Court’s amply demonstrate, all discretion, even if outwardly appearing as absolute, is to be regarded as qualified, fettered and structured, if not by statutory provisions then by the guidelines laid down in judicial pronouncements. Thus, discretion must be exercised in good faith and in a fair and reasonable manner, and without frustrating the ultimate policy of the statute or relevant provision there. (This if of course only a partial description of the manner in which discretionary statutory power is to be exercised.”

We are respectfully in agreement with the law settled by the referred decision and consequently hold that the word satisfaction as to the assessment of the exported goods includes determination of its value and it is also within the competence of the respondents to check and determine the value of exported goods under section 131(1) (c) read with section 25(15) of the Customs Act 1969, irrespective of the fact that whether any rebate or drawback is being claimed or not, or any export duty is payable or not.

11. After having coming to the conclusion that the Customs Authorities are authorized under the Customs Act, 1969 to assess all categories of exported goods (whether chargeable to export duty or not) we now turn on to examine the issue “as to whether in case of undervaluation of goods being exported any penal action could be taken against such exporters or not.” A Penal action would naturally include detention, seizure and confiscation thereafter in terms of the relevant provision of the Act ibid. The most relevant and appropriate provision, as are presently relevant and so also relied and referred to, by the learned counsel for the Respondents are sections 32 and 32A of the Customs Act, 1969, which can be invoked so as to lead to any confiscation of the goods and imposition of redemption fine thereof and penalty as well. If any person contravenes any of these two provisions of the Customs Act, 1969, a penal action could be initiated against it in terms of clause 14 and 14A of Section 156(1) of the Act ibid respectively, and such penal action includes initiation of criminal proceedings before the Special Judge Customs & Taxation, by lodging of an F.I.R., and confiscation of goods and imposition of penalty by the Adjudicating Officer. For reference the provisions of Section 32 and 32A of the Customs Act, 1969, are reproduced as under:-

[32 [Untrue] statement, error, etc.--If any person, in connection with any matter of customs,--

(a) makes or signs or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other document whatsoever, or

(b) makes any statement in answer to any question put to him by an officer of customs which he is required by or under this Act to answer, [or]

(c) submits any false statement or document electronically through automated clearance system regarding any matter of Customs,]

[knowing or having reason to believe that such document or statement is false] in any material particular, he shall be guilty of an offence under this section.

(2) Where, by reason of any such document or statement as aforesaid or by reason of some collusion, any duty or charge has not been levied or has been short-levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within [five] years of the relevant date, requiring him to show cause why he should not pay the amount specified in the notice.

(3) Where, by reason of any inadvertence, error or misconstruction, any duty or charge has not been levied or has been short levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within [three years] of the relevant date requiring him to show cause why he should not pay the amount specified in the notice [:]

[provided that if the recoverable amount in a case is less than one hundred rupees, the Customs authorities shall not initiate the aforesaid action.]

[(3A) Notwithstanding anything contained in sub-section (3), where any duty or charge has not been levied or has been short-levied or has been erroneously refunded and this is discovered as a result of an audit or examination of an importer’s accounts or by any means other than an examination of the documents provided by the importer at the time the goods were imported, the person liable to pay any amount on that account shall be served with a notice within [five] years of the relevant date requiring him to show cause why he should not pay the amount specified in the notice [:]]

[Provided that if the recoverable amount in a case is less than one hundred rupees, the customs authorities shall not initiate the aforesaid action.]

(4) The appropriate officer, after considering the representation, if any, of such reasons as is referred to in sub-section (2) or sub-section (3) shall determine [any amount payable by him under this Act,] which shall in no case exceed the amount specified in the notice, and such person shall pay the amount so determined.

(5) For the purposes of this section, the expression “relevant date” means—

(a) in any case where duty is not levied, the date on which an order for the clearance of goods is made;

(b) in a case where duty is provisionally assessed under section 81, the date of adjustment of duty after its final assessment;

(d) in any other case, the date of payment of duty or charge [;]

[(e) in case of clearance of goods through the Customs Computerized System, on self-assessment or electronic assessment, the date of detection.]

[32A Fiscal fraud.--(1) If any person, in connection with any matter related to customs:--

(a) causes to submit documents including those filed electronically, which are concocted, altered, mutilated, false, forged, tempered or counterfeit to a functionary of customs;

(b) declares in the [goods declaration] electronically filed customs declaration, the name and address of any exporter or importer which is physically non-existent at the given address;

(c) declares in the [goods declaration] electronically filed customs declaration, an untrue information regarding [payment of duties and taxes through self-assessment,] description, quantity, quality, origin and value of goods;

(d) alters, mutilates or suppresses any finding of the customs functionary on any document or in the computerized record; or

(e) attempts, abets or connives in any action mentioned in clauses (a), (b), (c) and (d) above,

he shall be guilty of an offence under this section.

(2) Where, by any reason as referred to in sub-section (1) as aforesaid, any duty or tax charged or fee or fine and penalty levied under any provision of law has not been levied or has been short levied or has been refunded, the person liable to pay any amount on that account shall be served with a notice within a period of 180 days of the date of detection of such custom duty and tax fraud, requiring him to show cause as to why he should not pay the amount specified in the notice along with any other amount imposed as fine or penalty under the provisions of this Act.

(3) The appropriate Adjudicating Officer, after considering the written or verbal representation of such person, may determine the amount of duty or tax chargeable or fee payable by such person which shall in no case exceed the amount specified in the notice and such person shall pay the amount so determined besides the fine or penalty or both.]

12. When we move on to examine the provisions of section 32 and 32A of the Customs Act, (in material terms both are more or less identical) it is observed that if any person, in connection with any matter of customs, makes or signs or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other documents whatsoever, or submits any false statement or documents electronically through automated clearance system regarding any matter of customs, “knowing or having reasons to believe” that such document or statement is false in any material particular he shall be guilty of an offence under this section. Hence, it is firstly required that there must be a declaration with the matter of customs being submitted, and if such declaration is false in material particulars, it must have been done knowing or having reason to believe that such declaration is false in any material particular. Therefore, it is not only that such declaration must be false or untrue, but that must be knowingly or having reasons to believe that it is false in that material particular. This, therefore, consequently means that it is not merely a false or untrue declaration which must have been made, but the customs authorities are mandatorily required to prove that such declaration or document was filed or submitted to them knowingly and with reasons to believe that it was false and untrue. Mere assertion by the customs authorities that any false or untrue declaration or statement has been made, would only fulfill one part of this section, and to attract the provisions of this section, the second part (knowingly and having reasons to believe) must necessarily be also proved by the customs authorities, before any action is initiated under section 32 of the Customs Act 1969. Further, this is not the end of it, as once it is established that the two prerequisite conditions have been satisfied, then, it must also be proved that owing to such false statement or declaration, any loss of revenue has also occurred or an attempt has been made to do so, failing which no notice could be issued in terms of sub section (2) of section 32 of the Customs Act, as it relates to recovery of the amount of duty or charge not levied or short levied due to filing of declaration or statement as referred to in sub section (1) of section 32 of the Act (we are not considering sub sections (3) and (3A) of section 32 as they are not presently relevant). Therefore the necessary corollary is that, if there is no loss of revenue or is not a case where any duty or charge has not been levied or short levied, then no notice could be issued in terms of section 32 of the Customs Act 1969, consequently no penal action can be initiated on such false or untrue declaration, which has not resulted in a short levy of duty or charge. This observation lends credence from at least two judgments of this Court, out of which one has been affirmed by the Honorable Supreme Court. The first case is of M/s Al Hamd Edible Oil Mills Limited V/s Collector of Customs reported as 2003 PTD 552, wherein a Division Bench of this Court has held as under;

“A bare reading of the section clearly indicates that it relates to a situation where a person makes any statement or files any document which is false in any material particular by reason of which any duty or charge is not levied or is short levied or is refunded. In such event, the Customs Authority is empowered to issue to the person concerned a notice to show-cause why he should not pay the loss of revenue suffered by the Department and after giving him a hearing, beside any other action under law, order payment of the same, if a case is made out. The entire provision revolves around the central point of loss of revenue suffered by the Customs Department on account of the conduct of any person. Mr. Iqbal has not urged that the Department has suffered any loss on account of the conduct of the appellants. The question of applicability of section 32 in the present circumstances apparently does not arise.”

The second judgment is in the case of M/s A.R. Hosiery Works V/s Collector of Customs Exports reported as 2004 PTD 2977, authored by late Justice Sabihuddin Ahmed, (as his lordship then was). In this case the judgment referred above in the case of M/s Al Hamd (Supra) has been followed. Though this is a single bench judgment, but subsequently has been affirmed by the Honorable Supreme Court. In fact this was also a case of an export consignment and an allegation was leveled against the exporter that an untrue declaration was made in respect of composition of fabrics of the consignment as 100% cotton, as against being blended with 90% cotton and 10% Polyester, and consequently a show cause notice was issued in terms of section 32 of the Customs Act 1969, though no loss of revenue was involved. The Court held as under;

“11. It may also be mentioned that apart from the statutory change mentioned above section 32 does not merely contain punitive provision basically it deals with recovery of duties and charges payable to the exchequer either on account of fraudulent acts of persons liable to pay or through errors of Customs officials as is evident from a reading of clauses (2), (3), (3-A) and (4). Moreover clause (1) requires that the untrue statement must be made in connection with any material of customs and should be false in any material particular. A harmonious reading of the entire section tends to show that it does not cover every untrue declaration having nothing to do with evasion of customs duty or other charges but such statements must indicate an attempt to defraud public revenues.

12. In view of the admitted position that the fact whether the goods exported consisted of cotton or cotton blended with polyester did not attract any export duty or vary the duty draw back. I am of the view that section 32 was not attracted. In view of the above position this appeal is allowed and the impugned order is set aside with no order as to costs.”

The judgment of this Court as reproduced above was subsequently affirmed by the Honorable Supreme Court in the case of Collector of Customs Exports V/s A. R. Hosiery Works reported as 2007 PTD 2215 and it was held as follows..

“7. From the above discussion, there can be no room for doubt that the provisions of section 32(1) of the Customs Act will be attracted only when a mis-declaration or mis-statement is made with a view to obtain illegal gain by evasion of payment of customs duty and other taxes or by causing loss to Government revenues. The mis-declaration alleged to have been in this case was neither for evasion of payment or customs duty or other taxes/charges nor occasioned by financial loss to the Government.”

Therefore, in view of the above judgments of this court as well as of the Honorable Supreme Court, we hold that as and when the provisions of section 32 are to be invoked in a matter of customs, either be it related to imports or exports, the primary consideration should be, that there must be a revenue loss to the state, either in the shape of duty or charge not being levied or short levied or any attempt for avoidance of any such levy, or there must be an intention to claim or receive a rebate or duty drawback or an attempt to avoid any levy of export duty or any charge.

13. The learned counsel for the Respondents had also relied upon the provisions of the F.E.R.A., 1947, especially section 12 and the Foreign Exchange Rules of 1952 read with Notification No. F.E. 1/98-SB dated 8th June, 1998 and had contended that all these enabling provisions allows the Customs authorities to initiate action in terms of section 12(5) of the FERA 1947, and as such are entitled in law to ask the exporter to increase the value declared in the Form “E” equal to the one which was being determined in terms of section 25(15) of the Customs Act 1969. For ease of reference the same are reproduced as under;

F.E.R.A., 1947

12. Payment for exported goods.---(1) The Federal Government may, by notification in the official Gazette, prohibit the export of any goods or class of goods specified in the notification from Pakistan directly or indirectly to any place so specified unless a declaration supported by such evidence as may be prescribed or so specified, is furnished by the exporter to the prescribed authority that the amount representing the full export value of the goods has been, or will within the prescribed period be, paid in the prescribed manner.

(2) …………..

(3) …………..

(4) …………..

(5) Where in relation to any such goods the value as stated in the invoice is less than the amount which in the opinion of the State Bank represents the full export value of those goods, the State Bank may issue an order requiring the person holding the shipping documents to retain possession thereof until such time as the exporter of the goods has made arrangements for the State Bank or a person authorized by the State Bank to receive on behalf of the exporter payment in the prescribed manner of an amount which represents in the opinion of the State Bank the full export, value of the goods.

(6) …………..

Foreign Exchange Rules 1952

3. In the case of goods or class of goods specified in the notification issued under Section 12(1) of the Act:--

(1) the authority to whom the declaration has to be submitted by the exporter shall be the Collector of Customs or such other person as the State Bank may from time to time by notification in the official Gazette specify for the purpose.

(2) …………..

(3) …………..

(4) …………..

(5) …………..

Notification No. F.E. 1/98-SB dated 8th June, 1998.--In pursuance of Rule 3 of the Foreign Exchange Rules, 1952 and all other powers enabling it in this behalf under the Foreign Regulation Act, 1947 (VII of 1947) and in suppression of the Notification No. F.E. 5/72-SB dated the 27^th December, 1972 as amended from time to time, the State Bank of Pakistan is pleased to notify as follows:--

1. A declaration to be submitted under sub-section (1) of Section 12 of the F.E.R. Act, 1947 (VII of 1947) shall be submitted by the exporter:

(a) When the goods are exported otherwise than by post, to Collector of Customs;

(b) When goods are exported by post, to the Post Master of the Post Office at which the goods are posted for export.

2. An amount representing the full export value of the goods shall be paid on the due date for payment or within four months from the date of shipment or posting, as the case may be, whichever is earlier.

3. An amount representing the full export value of any goods exported to any country shall be paid through an Authorized Dealer in Pakistan either in U.S. Dollar or in any convertible foreign currency in which an Authorized Dealer maintains accounts a material was such from a non-resident bank account.

We have seen and examined the provisions so referred by the learned counsel for the respondents, which in fact were also relied upon by the learned counsel for the petitioner specially sub section (5) of section 12 of the FERA 1947. In so far as section 12 is concerned, it is only sub-sections (1) & (5) which have relevance, if any, in the instant case. The provision of sub section (1) empowers the Federal Government who may by notification in the official Gazette, prohibit the export of any goods or class of goods specified in the notification from Pakistan directly or indirectly to any place so specified unless a declaration supported by such evidence as may be prescribed or so specified, is furnished by the exporter to the prescribed authority that the amount representing the full export value of the goods has been, or will within the prescribed period be, paid in the prescribed manner. Through this provision, the Federal Government has already prescribed such procedure whereby the exporter is required to submit a Form “E” duly issued by the concerned bank of the exporter reflecting the amount of export value or export proceeds which are to be remitted back after completion of the export within the time so allowed under the law. We believe that this sub section is not of any help to the case of the respondents as it does not provide anything except the authority to verify and endorse the Form “E” at the time of processing of the export documents. It does not confer any power or authority, whatsoever; to either determine the value of exported consignment, nor any further, if the same is not correctly declared. Next relevant provision is sub section (5) of section 12 of the FERA 1947. This provision of the FERA 1947, states that where in relation to any goods being exported, the value as stated in the invoice is less than the amount which in the opinion of the State Bank (“SBP”) represents the full export value of the such goods, the SBP may issue an order requiring the person holding shipping documents to retain possession thereof until such time as the exporter of such goods has made arrangements for the SBP or a person, authorized by the SBP to receive on behalf of the exporter payment in the prescribed manner of an amount which represents in the opinion of the SBP the full export value of the goods. Though this provision, somewhat deals with the issue of valuation of exported consignments, but perhaps, unfortunately does not cater to the situation in hand in the manner, it ought to have so done. It is provided that in case of an issue of valuation of exported consignment if the invoice value is less than the satisfaction of the SBP, the only remedy available even to the SBP is to ask the person holding the shipping documents not to release them. What is the consequence of this? Nothing, but simply that the exporter will not be able to get or have its payment released from the concerned bank to whom it has submitted the same for negotiation after completion of export shipment. Firstly, as could be seen, this relates to a situation or position when the documents are presented to the concerned bank, meaning thereby it must, and should be, after the shipment has been made and after completion of all codal formalities. Therefore, with respect to the learned counsel for the respondent, nowhere the customs authorities figure, rather cannot figure in this situation. It is only the SBP and the concerned bank, and that too only to the extent of holding the shipping documents. It provides that SBP can raise an objection in respect of a consignment being exported and if it (SBP) feels that the value declared in (FORM “E”) is not correct or true, then it can ask the corresponding bank in Pakistan to withhold the documents and that is all. It unfortunately does not provides a mechanism whereby any penal action could be initiated against such exporter nor does it devolves or delegates any authority to the Respondents to initiate any action in case of violation of the provisions of section 12(5) of the FERA 1947. The only authority so delegated to the Customs is in respect of demanding a declaration (Form “E”) and endorse it after completion of its own procedure and retain a copy thereof and return one copy with an endorsement which is thereafter submitted to the bank by the exporter for negotiating the export documents. The FERA 1947 or Rule 3 of the Foreign Exchange Rules 1952, or even the Notification dated 08.06.1998 does not provides any authority or mechanism to penalize the exporter or to detain or confiscate such goods for any alleged attempt of under valuation of the same. The crucial question is then, what consequences follow and whether it is to be held that the respondents cannot thwart such an attempt of export or take any other action in such a situation and consequently allow export of such consignments, even though, prima facie the value declared therein is substantially on the lower side. To us the answer is No, as in terms of section 131 (1) (c) of the Customs Act, no goods shall be allowed to be loaded for exportation, until the customs has satisfied itself regarding correctness of the particulars of export, including assessment, which includes determination of value in terms of section 25(15) of the Customs Act 1969 as already discussed above. The respondents will be within their right not to allow exportation of such goods until and unless the exporter amends or corrects the value as determined in terms of section 25(15) of the Act ibid, in the export documents including Form “E” issued by the Bank. In the alternative, if the exporter is not in a position to do so, for its own reasons, (as the buyer cannot be compelled by the exporter to agree to remit the value so determined), the exporter will be within its rights to take the goods back and have them removed from the customs area. We may observe, that since we have held that no penal action is permitted under the given facts and circumstances of this case, therefore we are left with no option but to hold as such, and consequently, though no show cause notice has been issued till date, due to pendency of the instant petition as stated at the bar, even otherwise the respondents have no lawful authority or jurisdiction in the matter to issue any show cause notice for reasons as stated hereinabove.

14. We have also examined and gone through the contents and tenor of the language used in the notices issued in terms of section 26 of the Customs Act 1969, to the Petitioner and its Bank, and will refrain ourselves from commenting on it any further, except that the respondent No 5 has not bothered to go through it before its issuance. There is no reference to any sort of enquiry or its remotest of details; no reference has been made to any previous shipment, (though the computer system available with the respondents can always assist them); no reason of whatsoever nature has been stated for issuing such notices; and the petitioner has very rightly contended that these notices are nothing but a fishing and roving enquiry which is not permissible under the law and as held by the Honorable Supreme Court in the case of Assistant Director Intelligence and Investigation, Karachi (Supra), in which the Honorable Supreme Court while dealing with the provisions of Section 26 of the Customs Act, 1969 held as follows:

“ . . . . . The object of section 26 of the Customs Act is to empower the authority to ask for information or require the production of documents or inspect the same in order to determine the legality or illegality of importation or exportation of goods which have been imported or exported, the value of such goods, the nature, amount and source of the funds or the assets with which goods were acquired and the customs duty chargeable therein or for deciding anything incidental thereto. The authority can only for specific purposes of determining the legality or illegality call for such information as required by section 26. The authorized officer can call upon any importer or exporter to furnish information in case where such determination is required. It cannot make a roving inquiry or issue a notice by merely shooting in the dark in the hope that it will be able to find out some material out of those documents and then charge the party of irregularity or illegality. The authority has to state and disclose in the notice, the purpose for which the party is required to produce those documents or supply information. Unless such purpose is specified in the notice, it will be a matter of anybody’s guess and the accused party will be put to inquiry without any specific allegation or fact disclosed to him. It does not permit any authority to employ the provisions of section 26 to make indiscriminate, roving and fishing inquiry irrespective of the fact whether any determination of legality or illegality in import, export or funds with which the goods were acquired is to be determined. Even in cases of suspicion of commission of illegality, details should be provided to the party to enable him to have an opportunity to produce all the relevant documents and disclose information. Depending on the facts and circumstances of a case, any notice without disclosing any fact or particulars for which information or documents are required will be in violation of the principles of natural justice and may be struck down as illegal and without jurisdiction.”

When we examine the impugned notices issued under Section 26 of the Customs Act, 1969, in the light of the guiding principles as settled by the apex Court, it is noticed that none of the ingredients as stated above are available in the said notices. Therefore, we are left with no option but to hold that these impugned notices are illegal, without jurisdiction and, therefore, cannot be acted upon any further and, consequently, are hereby set-aside.

15. Lastly, adverting to the case law of Indian Jurisdiction relied upon by the learned counsel for the respondents as according to him no direct case law of our Courts was presently available on the issue. The learned counsel referred to the case of Toolsidass Jewraj and Om Prakash Bhatia (supra). Both these judgments of the Indian Supreme Court have though dealt with more or less similar question as is relevant in the instant petition, but with utmost respect to the learned counsel for the respondents, the very provisions of the Indian Customs Act, 1962 as well as Foreign Exchange Regulation Act 1973, (see section 18) are altogether on a different footing and as such, the reliance placed on these two judgments by the learned counsel for the respondents is misconceived and cannot be entertained. The relevant provisions of the Indian Customs Act 1962 dealt with, in these two judgments, are unfortunately missing and not available in our Customs Act, nor are any other contemporary provisions available of the like nature. Therefore, the ratio of the said judgments of the Indian Jurisdiction is of no help and cannot be applied in the instant matter. There are various provisions like sections 2(33), 2(41), Section 14 and 113 of the Customs Act, 1962 available and relevant in the Indian Customs Act, 1962 and section 18 of the Foreign Exchange Regulation Act 1973 and for ease of reference are hereby reproduced hereunder:

2. Definitions.

(33) “prohibited goods” means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with;

(41) “value”, in relation to any goods, means the value thereof determined in accordance with the provisions of sub-section (1) of Sec. 14;

14. Valuation of goods for purposes of assessment.---(1) For the purposes of [the Customs Tariff Act, 1975 (51 of 1975),] or any other law for the time being in force whereunder a duty of customs is chargeable on any goods by reference to their value, the value of such goods shall be deemed to be---

The price at which such or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation or exportation, as the case may be, in the course of [international trade, where---

(a) the seller and the buyer have no interest in the business of each other; or

(b) one of them has no interest in the business of the other, and the price is the sole consideration for the sale or offer for sale]

[Provided that such price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under Sec. 46, or a shipping bill or bill of export, as the case may be, is presented under Sec. 50;]

[(1A) Subject to the provisions of sub-section (1), the price referred to in that sub-section in respect of imported goods shall be determined in accordance with the rules made in this behalf.]

(2) Notwithstanding anything contained in sub-section (1) [or sub-section (1A)], if the [Board] is satisfied that it is necessary or expedient so to do it may, by notification in the Official Gazette, fix tariff values for any class of imported goods or export goods, having regard to the trend of value of such or like goods, and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value.

(3) For the purposes of this section---

(a) “rate of exchange” means the rate of exchange---

(i) determined by the [Board], or

(ii) ascertained in such manner as the [Board] may direct, for the conversion of Indian currency into foreign currency or foreign currency into Indian currency.

[(b) “Foreign currency” and “Indian currency” have the meanings respectively assigned to them in Cl. (m) and Cl. (q) of Sec. 2 of the Foreign Exchange Management Act, 1999 (42 of 1999).]

113. Confiscation of goods attempted to be improperly exported, etc.—The following export goods shall be liable to confiscation :---

(a) any goods attempted to be exported by sea or air from any place other than a customs port or a customs airport appointed for the loading of such goods;

(b) any goods attempted to be exported by land or inland water through any route other than a route specified in a notification issued under clause(c) of Sec. 7 for the export of such goods;

(c) any dutiable or prohibited goods brought near the land frontier or the coast of India or near any bay, gulf, creek or tidal river for the purpose of being exported form a place other than an land customs station or a customs port appointed for the loading of such goods;

(d) any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force;

(e) any dutiable or prohibited goods found concealed in a package which is brought within the limits of a customs area for the purpose of exportation;

(f) any dutiable or prohibited goods which are loaded or attempted to be loaded in contravention of the provisions of Sec. 33 or Sec. 34;

(g) any dutiable or prohibited goods loaded or attempted to be loaded on any conveyance, or water-borne, or attempted to be water-borne for being loaded on any vessel, the eventual destination of which is a place outside India, without the permission of the proper officer;

(h) any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under Sec. 7;

(i) Any dutiable or prohibited [or goods entered for exportation under claim for drawback] which do not correspond in any material particular with the entry made under this Act or in the case of baggage with the declaration made under Sec. 77 in respect thereof;

[(ii) any goods entered for exportation under claim for drawback which do not correspond in any material particular with any information furnished by the exporter or manufacturer under this Act in relation to the fixation of rate of drawback under Sec. 75;]

(j) any goods on which import duty has not been paid and which are entered for exportation under a claim for drawback under Sec. 74;

(k) any goods cleared for exportation under a claim for drawback which are not loaded for exportation on account of any willful act, negligence or default of the exporter, his agent or employee, or which after having been loaded for exportation are unloaded without the permission of the proper officer;

(l) any specified goods in relation to which any provisions of Chapter IV-B or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened.

Section 18 of the Foreign Exchange Regulation Act, 1973.

18. Payment of exported goods.—(1)(a) The Central Government may, by notification in the Official Gazette, prohibit the taking or sending out by land, sea or air (hereafter in this section referred to as export) of all goods or of any goods or class of goods specified in the notification from India directly or indirectly to any place so specified unless the exporter furnishes to the prescribed authority a declaration in the prescribed form supported by such evidence as may be prescribed or so specified and true in all material particulars which, among others, shall include the amount representing :---

(i) The full export value of the goods; or

(ii) If the full export value of the goods is not ascertainable at the time of export the value which the exporter, having regard to the prevailing market conditions, expects to receive on the sale of the goods in the overseas market.

and affirms in the said declaration that the full export value of the goods (whether ascertainable at the time of export or not) has been, or will within the prescribed period be, paid in the prescribed manner.

16. From the perusal of the above provisions it could be seen that in view of the provisions of section 18 of the FERA 1973, if an export is being made wherein a declaration in the prescribed form, which must be true in all material particulars, among others is not made by the Exporter, then, export of such goods is to be termed as not permissible or prohibited, and consequently, in terms of section 113(d) of the Indian Customs Act, goods are liable to be confiscated. Whereas the provisions of our Customs Act as well as FERA 1947, do not cater for such a situation and are not in Pari materia to the Indian Acts, therefore as stated above, these judgments, though having dealt with somewhat similar situation, are of no help to the case of the respondents.

17. Therefore in view of what has been discussed above, the instant petition is partly allowed to the extent that the impugned notices under Section 26 of the Customs Act, 1969 are set-aside. However, it is further held that the Respondents have the authority and jurisdiction to satisfy themselves regarding correctness of the assessment, including value of the exported consignments in terms of section 25(15) read with section 131 (1) (c) of the Customs Act 1969, however, no penal action in terms of section 32 of the Custom Act, 1969 can be initiated against the Petitioner in case of its failure to agree with such determination, except refusal to allow shipment of the consignment. However, if the Petitioner is dissatisfied with such an assessment of valuation and intends to challenge the same on merits, the Petitioner is at liberty to avail the remedy available in accordance with law. Since considerable time has lapsed due to inaction on the part of the respondents, and for the fact that we have already held that no penal action can be initiated against the Petitioner, it is desirable that the respondents be directed to issue delay and detention certificate to the petitioner which shall be accepted by the respective terminal operator/port authority in accordance with the provisions of section 14A of the Customs Act 1969. Order accordingly.

18. The petition stands disposed of as above.

Judge

Dated: 27.11.2013

Riaz/P.A*