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Customs Miscellaneous Application No.6/CU/IB of 2009, decided on 11th March, 2009.

----S.156(1), Cl.(89)---Imports and Exports (Control) Act (XXXIX of 1950), S.3---Cancellation of import authorization by Minister of Commerce after goods reached Pakistan--Effect----Importer"s right to import such goods would remain un-affected. Mian Abdul Ghaffar, Advocate Assisted by Sheryar Sheikh for Applicants. Adnan Iqbal Sawati, D. C./D. R for Respondent. Date of hearing: 3rd March, 2009.

--A Miscellaneous application under section 151, C.P.C. has been filed by the applicants/petitioners. 2. The brief facts of the case are that Messrs Jhelum Enterprises Customs Clearing Agent presented a Goods Declaration No.16713/07, dated 22-4-2007 for the clearance of a consignment consisting of 100 pistols made in USA. During the examination, the import authorization No.05582, dated 6-9-2006 provided along with import documents was found suspicious. Therefore, the original copy of the said import authorization was obtained from the official record, which showed import ceiling worth Rs.500,000 and when it was tallied with the import authorization presented by the clearing agent on behalf of Messrs Trans International (Pvt.) Islamabad it was found tampered/forged, showing the amount of import authorization as Rs.50,00,000. As import authorization was found tampered/forged, subsequently, the same was got verified from the Ministry of Commerce who confirmed vide their letter No. 19(29)/2006-imp-I, dated 2-5-2007 that no authorization for Rs.5 million was ever issued by Ministry of Commerce. Therefore, the imported consignment consisting of 100 pistols along with Goods Declaration No.16713107, House Airway Bill, Delivery orders, Master Airway Bill, LC, Invoice, original cargo manifest and US Department of State Transaction No.196 were seized after proper documentation and regular case was registered against the appellant, Syed Irfan Ali son of Syed Suleman, Islamabad, both of Messrs Trans International (Pvt.) Ltd., Islamabad and Raja Abid Mehmood son of Sultan Mehmood of Messrs Jhelum Enterprises, Customs Clearing Agency vide F.I.R. No.17 of 2007, dated 30-4-2007 with the Investigation and Prosecution Branch of Collectorate of Customs, Rawalpindi for Violation of provisions of sections 32, 156(1)(14)(77), 157 and 178 of the Customs Act, 1969 read with section 3(1) of the Imports and Exports (Control) Act, 1950. The clearing agent was also alleged to have contravened the provisions of Rule 102(iv)(v) punishable under Rules 103 and 104(2) of Customs Agents Licensing Rules, 2001. 3. A criminal case based on the above allegation was also registered vide F.I.R. No.17 of 2007, dated 30-4-2007. The accused were acquitted under section 265-K, Cr.P.C. 4. The case was adjudicated firstly by the Additional Collector of Customs, who ordered for the outright confiscation of the seized goods and a penalty equal to three times the value of the seized goods were also imposed upon all the three petitioners. The Customs House Agent License of Raja Abid Mehmood proprietor of Messrs Jhelum Enterprises was also revoked forthwith and the amount of Rs.30,000 deposited as security was also ordered to he forfeited. 5. Being aggrieved of this, an appeal was preferred before the Collector (Appeals), Rawalpindi, who vide order, dated 12-3-2008 dismissed the appeal and the Order-in-Original No. 36 of 2007, dated 5-9-2007 was upheld. Thereafter further appeal was filed before this Tribunal by the present petitioners. Vide this Tribunal"s judgment, dated 23-5-2008 it was held that section 32 of the Sales Tax Act, 1990 and the penal clauses 156(1), (14), (77), 157 and 158 of the Customs Act, 1969 were not applicant. However it was held that the goods imported were liable to confiscation, as the authorization of import was found tampered and take. Furthermore, this Tribunal came to the conclusion that petitioner No.3 being agent was fully liable for acts and omissions of the principal and as he had violated rule 102(4 and 5) of the Customs Agents Licensing Rules and therefore, his license was rightly revoked. The petitioners approached Hon"ble Islamabad High Court, Islamabad through Customs Reference No.1 of 2008. In the detailed judgment Hon"ble High Court framed the following questions of law:---

(i) Whether the cancellation of import authorization by the Minister of Commerce on 12-5-2007 could be made basis for holding the petitioners were not authorized or competent to import the goods in issue

(ii) Whether the Tribunal could have maintained the order of the Additional Collector confirmed by the Collector (Appeals) without recording a finding that the case of the petitioners is covered by section 156(1) clause 89 of the Customs Act, 1969 6. The Hon"ble High Court held "that the cancellation of import authorization vide letter, dated 12-5-2007 issued by the Ministry of Commerce would not affect the right of the petitioners to import the goods in issue, as the goods had already reached Pakistan before the said cancellation". Thus the first question was replied in the negative.7. However, the Hon"ble High Court did not agree with the findings of this Tribunal that in consequence of the cancellation of the authorization letter, the importers were-not authorised, or competent to import the goods in issue. However, it was observed that "no finding has been recorded by the Tribunal that the goods imported are in excess of the authorization". Thus the question No.2 was also replied in the negative. With these observations, the matter was remanded to this Tribunal. 8. Now the petitioners have moved this application for the implementation of the order, dated 12-1-2009 passed by the Hon"ble Islamabad High Court, Islamabad in Customs Reference No.1 of 2008. It is submitted that the confiscation order passed by the respondents be set aside and the decision be made as to whether the goods imported are in excess of the authorization or not. Notice was given to the respondents. Mr. Adnan Iqbal Sawati, D.C./D.R. appeared on behalf of the respondents department. 9. I have heard the learned counsel for the appellants and D.R. on behalf of the respondent and perused the available record. 10. As per judgment .of the Hon"ble High Court referred above, it has been held in para. 13 of the judgment by Hon"ble DB "that the cancellation of import authorization vide letter, dated 12-5-2007 issued by the Ministry of Commerce would not effect the right of the petitioners to import the goods in issue, as the goods have already reached Pakistan before the said cancellation. We will, therefore, answer first question in B the negative". 11. In para.11, it was observed "that in consequence of the cancellation of the authorization letter, the importers were not authorized or competent to import the goods in issue. No finding has been recorded by the Tribunal that the goods imported are in excess of the authorization. We, therefore, answer question No.2 in the negative." 12. From the perusal of the above quoted paragraphs, it is clear that though the import of Arms and Ammunition was restricted. However, the Arms and Ammunition were not otherwise banned is importable in accordance with the procedure laid down by the Federal Government. It could be imported against import authorization. Confronted with this, it was admitted on behalf of the respondent that the authorization bearing No.05717, dated 12th December, 2006 was genuine. The appellants were allowed enhancement of ceiling to import of Non-Prohibited Bore Arms and Ammunition from Rs.500,000 to Rs.20,00,000 on the annual basis. The value of the imported goods i.e. NPI; weapons was Rs.11,00,000 which is less than the authorization referred to above. There is nothing on record nor it has been agitated that after this authorization except the present consignment any other consignment under this authorization was imported. Therefore, it is held that the goods imported after the issuance of the authorization bearing No.05717, dated 12th December, 2006 are not in excess of the authorization stated therein. That being so, the order of confiscation is set aside and the respondents are directed to release the imported goods after the receipt of the customs duty and other taxes leviable under the law. S.A.K./71/Tax (Trib.) Order accordingly.

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