C. P. NO. D-361 / 2014
Present:
Mr. Justice Aqeel Ahmed Abbasi
Mr. Justice Muhammad Junaid Ghaffar.
Belal Mostafa Sadeqi Limited ………………………………….PETITIONER
VERSUS
Deputy Collector of Customs & Others…………………….RESPONDENTS
Date of hearing 12.09.2014
Petitioner Through Mr. Sardar Faisal Zafar Advocate.
Respondent No.1 & 2 Through Mr. Kashif Nazeer Advocate.
Respondent No.3 Through Mr. Ghulam Rasool Khattak, Advocate.
J U D G M E N T
MUHAMMAD JUNAID GHAFFAR , J:- Through instant petition, the petitioner has challenged in-action and refusal on the part of Respondent No.2 whereby the request for amendment in the Import General Manifest (“IGM”) in respect of change of name of consignee of the goods has been refused.
2. Brief facts as stated in the Memo of Petition are that the petitioner imported a consignment of “Polyester Fabrics” which was required to be sent to Afghanistan in Transit from Karachi. It is the case of the petitioner that they had been issued a House Bill of Lading bearing No.TGL/00822 dated 18-08-2012 by the Shipper namely Supreme (India) Impex Ltd (Surat), India, wherein the name of petitioner i.e. Belal Mostafa Sadeqi Limited has been shown as consignee of the goods. It is further stated that the principal (owner/carrier of Vessel) of respondent No.3 (local shipping agent) issued Master Bill of Lading of the said goods in the name of Freight Forwarder of the consignment namely M/s Ace Pakistan (Pvt) Ltd, Karachi. When the cargo arrived at Karachi, respondent No.3 filed I.G.M. of the Vessel wherein the name of the consignee was shown as M/s Ace Pakistan (Pvt) Ltd, Karachi, instead of the Petitioner. Thereafter, the respondent No.3 furnished an amendment request dated 27.08.2012, whereby, respondent No.2 was informed that due to late intimation by the Freight Forwarder, the manifest of the Vessel has been prepared on the basis of Master Bill of Lading, whereas, the same was required to be filed on the basis of House Bill of lading, showing the petitioner as consignee of the goods, instead of the Freight Forwarder. Such request of respondent No.3 has neither been accepted nor refused by the respondent No.2, which has compelled the petitioner to file the instant petition, as the goods are still lying at the Port for want of amendment in the manifest of the Vessel.
3. Learned Counsel for the petitioner has contended that in view of the provisions of Section 45(2) of the Customs Act, 1969, the request made on behalf of respondent No.3, for carrying out the amendment in the manifest was required to be allowed, as the mistake is a genuine mistake, therefore, respondents be directed to allow such amendment in the manifest of the vessel enabling the petitioner to file documents for clearance of the consignment. In support of his contention, learned counsel has relied upon the case of Yazdani Engineering Industry Vs Appellate Tribunal & another reported in SBLR 2009 Sindh 1744.
4. Mr. Kashif Nazeer, learned Counsel appearing on behalf of respondents No.1 and 2 has contended that since the amendment which has been requested on behalf of the petitioner, is a major amendment, as such, same does not falls within the ambit of Section 45(2) of the Customs Act, 1969, hence, cannot be granted. Learned Counsel further contended that even otherwise, the amendment sought by the petitioner is neither an error in terms of Section-45(2) of the Customs Act, 1969, nor any justifiable reason has been given for seeking such amendment.
5. We have heard both the learned Counsel and perused the record. Since a short controversy is involved in the instant petition, therefore, by consent of both the learned Counsel, the matter is being decided finally at Katcha Peshi stage.
6. It appears that the petitioner has imported a consignment consisting of Polyester Dyed Fabrics from Supreme (India) Impex Ltd, (Surat), India, and is in possession of House Bill of Lading No. TGL/00822 dated 18.12.2012, in which the petitioner has been shown as consignee of the goods. The Master Bill of Lading issued by the owner of the Vessel reflects the name of M/s Ace Pakistan (Pvt) Ltd, as the consignee of the goods. However, on perusal of both the Bills of Lading, it transpires that the material contents like the weight, description and number of packages of the consignment on both the Bills of Lading are identical whereas the Master Bill of Lading bearing No.753915132 has also been issued in respect of the same goods for which petitioner is in possession of the House Bill of Lading. In fact both the Bills of Lading are in respect of the same shipment with identical particulars, except the name of shipper and consignee, whereas the Respondent No. 2 has not been able to controvert such position in its comments with any plausible reasoning. It further appears from the record that due to an apparent mistake on the part of the Freight Forwarder, M/s Ace Pakistan (Pvt) Ltd, request for change of information in the manifest of the vessel was not done in time which has been presented before the Customs authorities showing the name of the Freight Forwarder as consignee of the goods. However, subsequently, vide amendment request dated 27.08.2012 addressed to respondent No.2 the Shipping Agent i.e. respondent No.3 has apprised the Respondent No.2 with regard to such mistake and has requested amendment in the manifest, whereby, the name of the petitioner has been shown as consignee of the goods, instead of existing. However, such request is pending since August, 2012 and neither any order has been passed either for rejection or for acceptance of such request.
7. The amendment, if any, in the IGM is governed by the provisions of section 45(2) of the Customs Act 1969 and it would be advantageous to refer to the provisions of Section 45(2) of the Customs Act, 1969, which reads as under:-
“45(2) The appropriate office shall permit the person-in-charge 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 results from 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.(Emphasis supplied)
(3) Except as provided in sub-section (2), no import manifest shall be amended.
8. From perusal of aforesaid provisions of Section 45(2) of the Customs Act, 1969, it appears that appropriate officer shall permit the person-in-charge 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 results from accident or inadvertence, by furnishing an amended or supplementary import manifest upon payment of such fee as may be prescribed by the Board from time to time. It is pertinent to mention that insofar as instant petition is concerned, it relates to an amendment in the manifest presented before the Customs authorities, whereas supplying for any omission is dealt with by filing of an additional or supplementary manifest, which is not the case here. The amendment can be requested by the Shipping Agent in respect of an obvious error or for supplying any addition in the IGM through filing of a supplementary manifest. However, there appears to be no restriction in this provision with regard to the question or qualification as to whether, what actually constitutes an “obvious error”. The contention of the learned Counsel for Respondents No. 1 & 2 that since the amendment being sought in name of the consignee is not an error, hence the same has been regretted, in our view is misconceived as the law does not restrict any such amendment, if the same is otherwise justifiable on the basis of documents or mitigating circumstances of the case. Any generalized classification as to what amendment constitutes an “obvious error” or not, in our view would defeat the purpose of the provisions of section 45(2) of the Customs Act 1969, which has been incorporated in the Act to take care of any such error on the part of the person filing the IGM of the Vessel. The intention and purpose of this provision is not to restrict, but to facilitate the trade with correction of errors and mistake. Therefore in our opinion, the contention raised on behalf of the respondents that neither the amendment requested on behalf of the petitioner is an error, nor any plausible reason has been given by the petitioner, is misconceived and is hereby repelled.
9. The issue in hand seems to be a case of an obvious error or a genuine mistake which is duly supported by the documents placed before us, including the House Bill of Lading and the Master Bill of Lading. It is a matter of record that the Freight Forwarder, who has been shown as consignee of the goods in the IGM filed before the Customs authorities is in fact, not the owner of the goods nor has he come forward to claim the same from the department. Therefore, we are of the opinion that in the given facts and circumstances of the instant matter, the amendment requested on behalf of the petitioner is covered under the provisions of section 45(2) of the Customs Act 1969, as it was due to an obvious error that the name of the Freight Forwarder of the consignment has been shown as consignee in the IGM of the Vessel instead of the petitioner. Reference in this regard can be made to the case of AVIA International and others Vs Assistant Collector of Customs (Import), Appraisement Collectorate, Customs House, Karachi and others reported as 2004 PTD 997 wherein a learned Division Bench of this Court while examining the scope and parameters of the provision contained in Section 45(2) Customs Act, 1969 has been pleased to hold as under
A perusal of the above provision shows that it empowers the appropriate officer to allow the correction of any obvious error in the import manifest or to rectify any omission which in the opinion of such officer results from accident or inadvertence. It is not a case of any omission but is a case of correction sought in the I.G.M. The law has provided for correction of any obvious error in the import manifest. An obvious error is an error which is plain and open and is plainly visible and evident. Now, if the I.G.M. sought to be amended is read with other import documents, Clarification Certificate of the supplier and N.O.C. of Messrs Classic Gift Centre the name of Messrs Classic Gift‑Centre as consignee in the IGM cannot be termed anything else but an obvious error with the result that the amendment sought falls squarely within the purview of section 45(2) of the Customs Act. The line of demarcation drawn by the respondent No.1, in major and minor amendment is imaginary and such figment of imagination is not warranted in law. While implementing a law the clear and plain language of the law is to be seen and nothing is to be added or subtracted. The golden principle of the interpretation of statute is that in the absence of any ambiguity the plain language of law and the words used in the enactment are to be considered and no additions, insertions or alternations are warranted in the language of law. We are of the considered opinion that, the respondent No.1 had travelled beyond the mandate of law in observing that the request of change of the consignee's name amounts to a major amendment which did not fall within the purview of section 45(2) of the Customs Act.
10. In view of hereinabove facts, in our opinion, the amendment requested on behalf of the petitioner is in fact a case apparently of an obvious error and or mistake, which is liable to be corrected in terms of Section 45(2) of Customs Act, 1969 and in view of such position, instant petition was allowed by us vide our short order dated 12.09.2014 and these are the reasons in support thereof.
JUDGE
JUDGE
Talib