Find a Lawyer

Writ Petition No. 613 of 1964, decided on 30th September 1966.

Ss. 24 & 75 read with Passengers Baggage (Import) Rules, 1958, r. 4‑Powers under S. 24 subject to rules framed under S. 75‑Inquiry in respect of violation of Foreign Exchange Regulation‑Cannot be embarked upon by Customs authorities.

Art. 98‑Writ jurisdiction‑Tribunal or Authority travelling beyond its jurisdiction or committing error apparent on face of record or acting on considera tions totally irrelevant and outside scope of law‑Superior Courts, in circumstances, can grant relief in supervisory capacity.

S. Iqbal Ahmed for Petitioner.

Shah Jamil Alam for Respondents.

Dates of hearing: 16th and 18th August 1966.

‑The petitioner seeks 'to challenge the order dated the 19th of August 1964 passed by the Central Board of Revenue, Government of Pakistan, rejecting his revision petition by which his request for release of a Cine Projector and its accessories free of duty, was refused. The relevant facts are that the petitioner, an Iranian national, has been residing at Karachi for over a decade. He is a co‑owner of two restaurants, "Cafe George" and "Cafe Ideal", situate in Saddar Area, Karachi. He went abroad for about three months and returned to Karachi by air on the 27th of August 1963. He declared the following unaccompanied luggage under Form "A".

The Customs Authorities released all the articles to him except the Cine Projector. So by a letter dated the 25th of September 1963 he requested the Collector of Customs to release the Cine Projector free of duty as he had purchased it for his personal use. As to the Foreign Exchange involved, he explained that he bad purchased the articles partly out of the Foreign Exchange granted by the State Bank of Pakistan and partly with the financial assistance of his elder ‑ brother living abroad. This application was treated as an appeal against the order of the Deputy Collector (Preventive) and was rejected by an order dated the 18th of October 1963 in the following words:

"Considering the circumstances of the case, I find no reason to interfere with the orders passed by Deputy Collector of Customs (Preventive).

Mr. Behram Khursandian should produce an Import Permit to cover the projector imported by him."

The petitioner also approached the Deputy Collector of Customs for the grant of copy of the order passed by him refusing to clear the article duty‑free. An order dated the 2nd of January 1964, passed by the Deputy Collector was then communi cated to him. It is to the following effect:

"Considering the circumstances of the case, the articles under clearance are not deemed as baggage meant for the bona fide personal use of the passenger. Free release under Baggage Roles, 1958, is therefore, refused.

Clearance may, however, be permitted on payment of duty and sales tax. An Import Permit will also have to be produced." The Petitioner then approached the Central Board of Revenue, in revision, but it was also dismissed on the 19th of August 11644, As this order is now impugned in this petition under Article 98 of the Constitution, it may be reproduced here under:

"The projector which is the subject‑matter of this revision petition was imported by the petitioner as his personal baggage and free entry was claimed as such under the Baggage Rules. The projector being a sub‑standard one otherwise would seem to qualify for exemption from sales‑tax under the Baggage Rules, as it happens to be specifically covered by para. 4(a)(x) of the Baggage Rules, but the Customs Collector has to be satisfied that it was for the personal use of the passenger. Keeping in view the status of the passenger, the small amount of 170‑0‑0 foreign exchange available with him against which he brought goods exceeding 400‑0‑0 in value and the various conflicting statements that he made in regard to the procure ment of the funds for the purchase of the articles like Air, Conditioner, Refrigerator, Tape Recorder, Camera, etc., the Collector considered it fit case to believe that the projector had not been brought for the personal use of the passenger. In this respect, the Government agree with the Collector's views. The action taken by the Collector was therefore, justified and the Government sees no justification to interfere with the orders already passed in the matter. The revision petition is, therefore, rejected."

2. In order to appreciate the contentions raised in this petition it may be stated, at the outset, that according to Passengers Baggage (Import) Rules, 1958 a passenger is entitled to exemption from duty in respect of one sub‑standard cinematograph camera with projector imported in his baggage, provided it is for his personal use only. "Baggage" according to the Rules means the personal wearing apparel and other personal or professional effects of a passenger, provided that such articles are not for sale, or imported for the personal use of the passenger or of members of his family travelling with him and whether such articles are used or accompanying him are exempted from customs duty or not.

3. The contention raised by the learned counsel for the petitioner was that the petitioner is entitled to exemption of duty in respect of the cine projector imported by him because he had brought it for his ‑personal use and not for sale. The question whether he could satisfactorily explain the foreign exchange involved in the purchase of all the articles imported by him, is not so irrelevant for the purposes of release of the article, free of duty, under the Rules. In fact the Customs Authorities are not competent to embark upon an enquiry in respect of violation of Foreign Exchange Regulation. It was further urged that without reaching a definite finding, after due enquiry, that the petitioner had imported the cine‑projector for the purposes of sale, the Authorities were not entitled, in law, to refuse the exemption.

4. In reply Mr. Shah Jamil Alam, the learned counsel appearing on behalf of the Department, urged that the Customs Authorities have unfettered discretion under section 24 of the Sea Customs Act to release any baggage free of duty or not, and an order passed in the exercise of this discretionary juris diction vested in them cannot be interfered with in proceedings under Article 98 of the Constitution. The learned counsel further urged that in order to avail of the exemption, the onus lies on the passenger to prove that the article was meant for his personal use and it was, not for sale. It was, therefore, for the petitioner to satisfy the Customs Authorities that the Cine Projector was not imported for the purposes of sale. He having failed to discharge this onus, the refusal of the authorities to gram of the exemption to the petitioner was quite valid in law.

5. We are not impressed by the first contention raised by the learned counsel for the department. Section 24 of the Sea Customs Act is in these words:

‑The Customs Collector may, subject to any General rules relating to the landing and ship ping of passengers' baggage and the passing of the same through the customs house, which may be made under section 75, pass free of duty any baggage in actual use and for this purpose may determine, subject to any such rules, whether any goods shall be treated as baggage in actual use, or as goods subject to duty."

6. It is clear from a plain reading of the above, that dis cretionary powers vested in the Customs Collector under the above provision of law are subject to any Rules that may be framed under section 75 of the Sea Customs Act.

It is admitted that Passengers Baggage (Import) Rules, 1958, are made under section 75 of the Act and, therefore the discretion of the Customs Collector to determine whether any goods shall be treated as baggage in actual use' or as subject to duty, is to be governed by the provisions contained in these Rules. The case of a passenger importing goods specified in rule 4 is, therefore, to be dealt with in accordance with the provisions of Passengers Baggage (Import) Rules, 1958.

7. On this view of the matter, the only question for considera tion in this petition would be whether the reasons for which the exemption was not allowed in this case have any valid founda tion. We called upon Mr. Shah Jamil Alam whether there was any provision in law under which the Customs Authorities were competent to refuse the exemption on the ground that the petitioner had not been able to satisfactorily explain the pro curement of Foreign Exchange involved in the purchase of the articles imported by him. The learned counsel stated that no such provision is contained either in the Sea Customs Act or the rules or notifications made or issued under it. We recorded the following note to this effect on the 18th of August 1966:

"On the last hearing we bad given time to Mr. Jamil Alam to enquire and let us know whether there was any provision of any kind which would entitle the Customs Authorities to refuse clearance of any article free from duty on the ground that the passenger had not been able to satisfactorily explain the sources from which he had obtained foreign exchange for purchasing the articles which formed part of his baggage and of which clearance was being sought. Mr. Jamil Alam stated today that there was no such provision. He further states that the file does not show that Customs Authorities addressed themselves to the question that article was intended for sale.

Mr. Jamil Alam however added that it is for the passenger, to satisfy the Customs Authorities that the projector with its accompaniment was not for sale."

8. As our attention has not been drawn to any provision of law authorising the Customs Collector to embark on an enquiry as to the procurement of Foreign Exchange involved in the purchase of articles imported by a passenger, it must be held that exemption of duty in respect of goods mentioned in rule 4 of the Passengers Baggage (Import) Rules, 1958, cannot be refused by the Customs Authorities on the ground that the passenger could not satisfactorily explain the Foreign Exchange involved in the import of any or all the goods concerned. Of course if a passenger contravenes any of the provision of the Foreign Exchange Regulations Act or the Rules or notifications made under it, he would be liable to the penalties under that law. It has not been shown to us that the Customs Officers are empowered to take action against a passenger who contravenes the. provisions of Foreign Exchange Regulations Act. It cannot, however, be said) that the Customs Officers are quite powerless and cannot even bring to the notice of the concerned authorities the case of a passenger contravening the provisions of Foreign Exchange Regulations Act.

9. As would be noticed above, two grounds weighed with the Central Board of Revenue in refusing exemption to the petitioner. Firstly, the status of the petitioner and secondly, the quantum of Foreign Exchange involved in the purchase of all the articles imported by him. We have already held that the second ground of refusal is not warranted by the Rules. As to the status of the petitioner, it would be seen that neither Deputy Collector not the Collector of Customs had refused the exemption on this ground. The Central Board of Revenue mentioned the status of the petitioner for the first time and these observations have been made in relation to the procurement of Foreign Exchange by him. It is relevant to mention in this connection that the petitioner had also imported other articles, i.e. one refrigerator, a6 air‑conditioner, a tape‑recorder etc., which were allowed to him free of duty without the question of his status ever been raised. That he is a man of sufficient means was not even controverted before us. However, it cannot be said that status of a passenger claiming exemption of duty in respect of goods specified under rule 4 of the Passengers Baggage (Import) Rules, 1958, is alto gether an irrelevant factor. In order to determine the question whether an article imported by a passenger is meant for his personal use or that he brought it for sale, his status may be considered as one of the relevant circumstances. But in this case it is clear that the petitioner's status has not been taken into consideration for this purpose. In fact the learned counsel for the Department frankly conceded that at no time the Customs Authorities inquired into question whether the petitioner had imported the cine projector for the purposes of sale. The case of the petitioner fall along was that he had brought the article for his personal use. The Deputy Collector and the Collector of Customs did not assign any reasons for refusing the exemption which was otherwise permissible to him under the Rules. The only ground stated by them in their orders is "considering the circumstances of the case, the article was not deemed as baggage meant for the bona fide personal use of the passenger." The Central gourd of Revenue misdirected itself to a question which is totally foreign to the considerations on which the goods specified in rule 4 are to be released free of duty. Had the authorities, at any stage, considered the question whether or not the, petitioner had imported the cine projector for his personal use or that it was meant for sale, any finding in thin behalf could not be challenged by way of a petition under article 98 of the Constitution. The findings of a Special Tribunal, created by law, to determine questions of fact cannot be interfered with to the exercise of this extra ordinary jurisdiction but where a Tribunal or an Authority travels beyond and in excess of its jurisdiction or powers or commits an error apparent on the face of the record, or acts on considerations totally irrelevant and outside the scope of law on which the causes before it are to be determined, the Superior Courts have the adequate power of supervision and correction under Article 98 of the Constitution. In such cases the High Court acts not as an appellate authority but in a supervisory capacity, in order to control the tribunals and watch that they act within the scope of their authority or jurisdiction and to see that law is not disobeyed, outraged or violated by the creatures set up by the law itself.

10. The facts of this case clearly show that the grounds on which the exemption of duty in respect of the article in question was refused to the petitioner are totally invalid an law and the consideration on which action was liken by the Authorities are foreign to the Rules. Admittedly, there is nothing on record to show that the petitioner had imported the article for the purposes of sale or that it was not meant for his personal use. He was therefore clearly entitled to import the article free of duty under the Passengers Baggage (Import) Rules, 1958.

11. For these reasons, the impugned orders passed in this case are quashed, with the direction that the Collector of Customs, Karachi, shall release the cine' projector and the accessories imported by the petitioner free of duty to him. The petition .is accordingly allowed with costs.

Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.