Updated: Wednesday June 28, 2017/AlArbia'a
Shawwal 04, 1438/Budhavara
Asadha 07, 1939, at 08:50:26 PM
TABLE OF CONTENTS
CHAPTER 1
1. Short title, extent and commencement.
2. Definitions.
CHAPTER II
APPOINTMENT OF OFFICERS OF
3. Appointment of officers of customs.
3A. Directorate General (Intelligence and Investigation), Customs and Central Excise.
3B. Directorate General of Inspection and Internal Audit.
3C. Directorate General of Training and Research.
3D. Directorate General, Valuation and Post-Clearance Audit.
3E. Powers and functioning of the Directorates, etc. Powers and duties of officers of customs.
4. Powers and duties of officers of customs
5. Delegation of powers.
6. Entrustment of functions of the customs officers to certain other officers.
7. Assistance to the officers of customs.
8. Exemption from service on jury or inquest or as assessors.
DECLARATION OF PORTS, AIRPORTS,
LAND CUSTOMS-STATIONS, ETC.
9. Declaration of customs-ports, customs-airports, etc.
10. Power to approve landing places and specify limits of customs-stations.
11. Power to declare warehousing stations.
12. Power to appoint public ware-houses.
13. Power to license private ware-houses.
14. Stations for officers of customs to board and land.
14.A. Provision of accommodation at customs port, etc.
CHAPTER IV
PROHIBITION AND RESTRICTION OF
15. Prohibitions.
16. Power to prohibit or restrict importation and exportation of goods.
17. Detention, seizure and confiscation of goods imported in violation of section 15 or section 16.
CHAPTER V
LEVY OF, EXEMPTION FROM, AND
REPAYMENT OF, CUSTOMS-DUTIES
18. Goods dutiable.
18A. Special customs duty on imported goods.
18B. Omitted vide Finance Act, 1999 (IV of 1999).
18C. Rate of duty and taxes and determination of origin under trade agreement. General power to exempt from customs-duties.
19. General power to exempt from customs-duties
19A. Presumption that incidence of duty has been passed on to the Bayer.
19B. Rounding off of duty, etc.
20. Board’s power to grant exemption from duty in exceptional circumstances.
21. Power to deliver certain goods without payment of duty and to repay duty on certain goods.
21.A Power to defer collection of customs-duty.
22.
Re-importation of goods produced or manufactured in
23. Goods, derelict, wreck, etc.
24. Provisions and stores may be exported free of duty.
25. Determination of customs value of goods.
25A. Power to take over the imported goods.
26. Power to require information to be furnished.
27. Abatement allowed on damaged or deteriorated goods.
27A. Allowing denaturing or mutilation of goods.
28 Power to test and denature imported spirit.
28. Restriction on amendment of bill of entry or bill of export or goods declaration.
30. Date of determination of rate of import duty.
30A. Date of determination of rate of duty for clearance through the Customs Computerized System.
31. Date for determination of rate of export-duty.
31A. Effective rate of duty.
32. False statement, error, etc.
32A. Fiscal fraud.
32B. Compounding of offence.
33. Refund to be claimed within six months.
34. Power to give credit for, and keep account-current of duties and charges.
CHAPTER VI
35. Drawback of the export on imported goods.
36. Drawback on goods taken into use between importation and exportation.
37. Drawback on goods used in the manufacture of goods which are exported.
38. Power to declare what goods are identifiable and to prohibit drawback in case of specified foreign territory.
39. When no drawback allowed.
40. Time of payment of drawback.
41. Declaration by parties claiming drawback.
CHAPTER VII
ARRIVAL AND DEPARTURE OF CONVEYANCE.
42. Arrival of conveyance.
43. Delivery of import manifest in respect of a vessel.
44. Delivery of import manifest in respect of a conveyance other than a vessel.
45. Signature and contents of import manifest and amendment thereof.
46. Duty of person receiving import manifest.
47. Bulk not to be broken until manifest, etc., delivered and vessel entered inwards.
48. Power to require production of documents and ask questions.
49. Special pass for breaking bulk.
50. Order for entry outwards or loading of goods to be obtained before export goods are loaded.
51. No vessel to depart without port-clearance.
52. No conveyance other than vessel to leave without permission.
53. Application for port-clearance of vessels.
54. Conveyances other than vessels to deliver documents and answer questions before departure.
55. Power to refuse port-clearance to vessels or permission for departure to other conveyance.
56. Grant of port-clearance or permission for departure.
57. Grant of port-clearance or permission for departure on security of agent.
58. Power to cancel port-clearance or permission for departure.
59. Exemption of certain classes of conveyance from certain provisions of this Chapter.
CHAPTER VIII
GENERAL PROVISIONS AFFECTING
CONVEYANCES AT CUSTOMS-STATIONS
60. Power to depute officer of customs to board conveyances.
61. Officer to be received and accommodation to be provided.
62. Officer’s powers of access, etc.
63. Sealing of conveyance.
64. Goods not to be loaded or unloaded or water-borne except in presence of officer.
65. Goods not to be loaded or unloaded or passed on certain days or at certain times.
66. Goods not to be loaded or unloaded except at approved places.
67. Power to exempt from sections 64 and 66.
68. Boat-note.
69. Goods water-borne to be forthwith landed or shipped.
70. Goods not to be transshipped without permission.
71. Power to prohibit plying of unlicensed cargo-boats.
72. Plying of ships of less than one hundred tons.
72A. Responsibilities of person in charge or master of a conveyance, agent and owner of the conveyance.
CHAPTER IX
73. Discharge of cargo by vessels may commence on receipt of due permission.
74. Discharge of goods by conveyances other than vessels.
75. Imported goods not to be unloaded unless entered in the import manifest.
76. Procedure in respect of goods not unloaded by vessels within time allowed.
77. Power to land small parcels and hold unclaimed parcels.
78. Power to permit immediate discharge.
79. Declaration and assessment for home consumption or warehousing.
80. Checking of goods declaration by the Customs.
81. Provisional determination of liability.
82. Procedure in case of goods not cleared or warehoused or transshipped or exported or removed from the port within one month after unloading or filing of declaration.
CHAPTER X
83. Clearance for home-consumption.
83A. Levy of additional duty.
84. Application to warehouse.
85. Form of application.
86. Submission of post-dated cheque and indemnity bond.
87. Forwarding of goods to warehouse.
88. Receipt of goods at warehouse.
89. Goods how warehoused.
90. Warrant to be given when goods are warehoused.
91. Access of customs officer to private warehouse.
92. Power to cause packages lodged in warehouse to be opened and examined.
93. Access of owners to warehoused goods.
94. Owner’s power to deal with warehoused goods.
95. Manufacture and other operations in relation to goods in a warehouse.
96. Payment of rent and warehouse-dues.
97. Goods not to be taken out of warehouse except as provided by this Act.
98. Period for which goods may remain warehoused.
99. Power to remove goods from one warehouse to another in the same customs-station.
100. Power to remove goods from one warehousing station to another.
101. Transmission of account of goods to officers at warehousing station of destination.
102. Remover may enter into a general bond.
103. Goods on arrival at customs-station of destination to be subject to same laws as goods on first importation.
104. Clearance of bonded goods for home-consumption.
105. Clearance of warehoused goods for export.
106. Clearance of warehoused goods for export as provisions, on a conveyance proceeding to foreign destination.
107. Application for clearance of goods.
108. Re-assessment of warehoused goods when damaged or deteriorated.
109. Re-assessment on alteration of duty.
110. Allowance in case of volatile goods.
111. Duty on goods improperly removed from warehouse or allowed to remain beyond fixed time or lost or destroyed or taken as sample.
112. Encashment of post-dated cheque.
113. Noting removal of goods.
114. Register of bonds.
115. Power to remit duties on warehoused goods lost or destroyed.
116. Responsibility of warehouse-keeper.
117. Locking of warehouses.
118. Power to decide where goods may be deposited in public warehouse, and on what terms.
119. Expenses of carriage, packing, etc., to be borne by owner.
CHAPTER XII
120. Chapter not to apply to baggage postal articles.
121. Transshipment of goods without payment of duty.
122. Superintendence of transshipment.
123. Entry, etc., of transshipped goods.
124. Transshipment of provisions and stores from one conveyance to another of the same owner without payment of duty.
125. Levy of transshipment fees.
CHAPTER XIII
126. Chapter not to apply to baggage and postal articles.
127. Transit of goods in the same conveyance.
128. Transport of certain classes of goods subject to prescribed conditions.
129. Transit
of goods across
CHAPTER XIV
130. No goods to be loaded on a conveyance, till entry outwards or permission granted.
131. Clearance for exportation.
132. Bond required in certain cases before exportation.
133. Additional charge on goods cleared for export after port-clearance granted.
134. Notice of non-loading or relanding and return of duty thereon.
135. Goods relanded or transshipped from a conveyance returning to a customs-station or putting into another customs-station.
136. Conveyance returning to customs-station may enter and land goods.
137. Landing of goods during repairs.
138. Frustrated cargo how dealt with.
CHAPTER XV
SPECIAL PROVISIONS REGARDING BAGGAGE AND GOODS IMPORTED OR EXPORTED BY POST
139. Declaration by passenger or crew of baggage.
140. Determination of rate of duty in respect of baggage.
141. Bona-fide baggage exempt from duty.
142. Temporary detention of baggage.
143. Treatment of baggage of passengers or crew in transit.
144. Label or declaration in respect of goods imported or exported by post to be treated as entry.
145. Rate of duty in respect of goods imported or exported by post.
CHAPTER XVI
146. Chapter not to apply to baggage.
147. Entry of coastal goods.
148. Coastal goods not to be loaded until bill relating thereto is passed.
149. Clearance of coastal goods at destination.
150. Declaration concerning coasting vessel which has touched foreign port.
151. Cargo book.
152. Coastal goods not to be loaded or unloaded except at customs-port or coastal port.
153. Coasting vessel to obtain written orders before departure.
154. Application of certain provisions of this Act to coastal goods.
155. Prohibition of the coastal trade of certain goods.
155A. Application of the Customs Computerized System.
155B. Access to the Customs Computerized System.
155C. Registered users.
155D. Registered users to be allocated unique user identifier.
155E. Use of unique user identifier.
155F. Cancellation of registration of registered user.
155G. Customs to keep records of transmissions.
155H. Confidentiality of information.
155I. Unauthorized access to or improper use of the Customs Computerized System.
155J. Interference with the Customs Computerized System.
155K. Offences in relation to the security of or unauthorized use of unique user identifiers.
155L. Audit or examination of records.
155M. Requisition of documents.
155N. Documents in foreign language.
155O. Authorized officer may take possession of and retain documents and records.
155P. Obstructing access, altering, concealing, destruction of record.
CHAPTER XVII
156. Punishment for offences.
157. Extent of confiscation.
CHAPTER XVIII
PREVENTION OF SMUGGLING – POWERS OF SEARCH, SEIZURE
AND ARREST – ADJUDICATION OF OFFENCES
158. Power to search on reasonable ground.
159. Person to be searched may desire to be taken before gazetted officer of customs or Magistrate.
160. Power to screen or X-Ray bodies of suspected persons for detecting secreted goods.
161. Power to arrest.
162. Power to issue search warrant.
163. Power to search and arrest without warrant.
164. Power to stop and search conveyances.
165. Power to examine persons.
166. Power to summon persons to give evidence and produce documents or things.
167. Person escaping may be afterwards arrested.
168. Seizure of things liable to confiscation.
169. Things seized how dealt with.
170. Procedure in respect of things seized on suspicion by the police.
171. When seizure or arrest is made, reason in writing to be given.
172. Power
to detain packages containing certain publications imported into
173. Procedure for disposal by High Court of applications for release of packages so detained.
174. Power to require production of order permitting clearance of goods imported or exported by land.
175. Power to prevent making or transmission of certain signals or messages.
176. Power to station officers in certain factories.
177. Restriction on the possession of goods in certain areas.
178. Punishment of persons accompanying a person possessing goods liable to confiscation.
179. Power of adjudication.
180. Issue of show-cause notice before confiscation of goods or imposition of penalty.
181. Option to pay fine in lieu of confiscated goods.
182. Vesting of confiscated property in the Federal Government.
183. Levy of penalty for departure without authority or failure to bring-to.
184. Power to try summarily.
185. Special Judges.
185A. Cognizance of offences by Special Judges.
185B. Special Judge, etc. to have exclusive jurisdiction.
185C. Provisions of Code of Criminal Procedure, 1898, to apply.
185D. Transfer of cases.
185E. Place of sittings.
185F. Appeal to Special Appellate Court.
185G. Persons who may conduct prosecution, etc.
186. Detention of goods pending payment of fine or penalty.
187. Burden of proof as to lawful authority, etc.
188. Presumption as to documents in certain cases.
189. Notice of conviction to be displayed.
190. Power to publish conviction.
191. Imprisonment may be of either description.
192. Duty of certain persons to give information.
CHAPTER XIX
193. Appeals to Collector (Appeals).
193-A Procedure in Appeal.
194. Appellate Tribunal.
194A. Appeals to the Appellate Tribunal.
194-B. Orders of Appellate Tribunal.
194-C. Procedure of Appellate Tribunal.
195. Powers of Board or Collector of Customs to pass certain orders.
195A. Omitted [vide Finance Ordinance, 2000 (XXI of 2000)].
195-B. Deposit, pending appeal, of duty demanded or penalty levied.
195-C. Alternate Dispute Resolution.
196. Reference to High Court.
196-H. Exclusion of time taken for copy.
196-I Transfer of certain pending proceedings.
196J. Definitions.
CHAPTER XX
197. Customs control over conveyances and goods.
198. Power to open packages and examine, weigh or measure goods.
199. Power to take samples of goods.
200. Owner to make all arrangements and bear all expenses.
201. Procedure for sale of goods and application of sales proceeds.
202. Recovery of Government dues.
203. Wharfage or storage fees.
204. Issue of certificate and duplicates of customs’ document.
205. Amendment of documents.
206. Correction of clerical errors, etc.
207. Custom-house agents to be licensed.
208. Agent to produce authority if required.
209. Liability of principal and agent.
210. Liability of agent appointed by the person-in-charge of a conveyance.
211. Importers and exporters to maintain accounts.
212. Regulation of business in gold, etc.
213. Recovery of money upon certain documents.
214. Remission of duty and payment of compensation to the owner in certain cases.
215. Service of order, decision, etc.
216. No compensation for loss or injury except on proof of neglect or wilful act.
217. Protection of action taken under the Act.
218. Notice of proceedings.
219. Power to make rules.
220. Omitted vide Federal Laws (Revision and Declaration)Ordinance, 1981.
221. Savings.
222. Removal of difficulties.
223. Officers of customs to follow Board’s orders, etc.
224. Extension of time limit.
THE FIRST SCHEDULE
THE SECOND SHCEUDLE
THE THIRD SCHEDULE
THE FOURTH SCHEDULE
CHAPTER I PRELIMINARY
Act No. IV of 1969
Whereas it is expedient to consolidate and amend the law relating to the levy and collection of customs-duties and to provide for other allied matters:---
It is hereby enacted as follows:----
Court Decision
Leave to appeal--Concurred findings--Custom reference--Goods
chargeable to customs duty under different PCT heading--Catalogue the
classification of imported goods was declared under PCT heading--Refund claim
was filed before the collector--Customs goods imported by petitioner were
shaped like shell as well as Tube--Validity--Adjudicating Officer had correctly
classified the imported goods chargeable under PCT--Customs Appellate Tribunal
and High Court rightly dismissed the appeal and Customs Reference of
petitioner--Concurrent findings were unexceptionable--Leave refused.PLJ 2010 SC 409
Preamble—Transfer of a case from a special court to another special court by the High court under S. 49, control of narcotic substances Act, 1997—Scope—Division bench of the High court, in the present case, had taken the view that High court under S. 49, Control of Narcotic substances Act, 1997 had the jurisdiction to transfer the case from one special court to another Special court under the said act and not to a court (Special court customs under the customs Act, 1969) which had no jurisdiction in the matter while another division Bench of the same high court had taken the contrary view—Division Bench in the present case, directed the officer that the matter may be placed before the Chief justice of the High court for constitution of a larger Bench to resolve these points. P L D 2004 Kar. 136
TABLE OF CONTENTS
CHAPTER 1
1. Short title, extent and commencement.
2. Definitions.
1. Short title, extent and commencement.-
(1) This Act may be called the Customs Act, 1969.
(2)
It extends to
the whole of
(3) It shall come into force on such date as the Federal Government may, by notification in the official Gazette, appoint.
2. Definitions.- In this Act, unless there is anything repugnant in the subject or context:---
(a) “adjudicating authority” means any authority competent to pass any order or decision under this Act, but does not include the Board, the Collector (Appeals) or the Appellate Tribunal;
(ai) “advance ruling” means classification determined by the Board or any officer, or committee authorized by the Board for the assessment of the goods intended to be imported or exported;.
(aa) “agent” means a person licensed under section 207 or permitted to transact any business under section 208;”
(aaa) “Appellate Tribunal” means the Customs, Excise and Sales Tax Appellate Tribunal constituted under section 194;
(b) “appropriate officer” in relation to any functions to be performed under this Act, means the officer of customs to whom such functions have been assigned by or under this Act;
(bb) “assessment” includes provisional assessment, reassessment and any order or assessment in which the duty assessed is nil ;
(bba) “audit” means examination of books, records, documents, correspondence, stocks and inventory of goods relating to import, export and other business activities of the persons referred to in section 211, in order to ascertain their liability of duties and taxes and compliance with relevant laws and rules;
(bbb) “baggage” includes unaccompanied baggage but does not include motor vehicles;
(c) Omitted
(d) Omitted
(e) “Board” means the Central Board of Revenue, constituted under the Central Board of Revenue Act,1924;
(ea) carrier” means the person actually transporting goods or incharge of, or responsible for, the operations of the means of transport or the owner thereof
(f)
“coastal goods”
means the goods transported in a vessel from one port in
(fa) “Collector” means Collector of Customs appointed under section 3 and includes any other officer equivalent in rank with any other designation appointed under this Act to perform specified functions in his own jurisdictin;
(ff) “Collector (Appeals)” means a person appointed to be a Collector of Customs (Appeals) under section 3;
(g) “conveyance” means any means of transport used for carrying goods or passengers such as a vessel, aircraft, vehicle or animal;
(h) “customs-airport” means any airport declared under section 9 to be a customs- airport;
(i) “customs-area” means the limits of the customs-station specified under section 10 and includes any area in which imported goods or goods for export are ordinarily kept before clearance by the customs authorities;
(ia) “Customs Computerized System” means a comprehensive Customs information technology system specified in Chapter XVI-A;
(ib) “customs documents” includes bill of entry, bill of export or goods declaration, applications for claim for refund, duty drawback and repayment of duty, baggage declaration form and documents such as bill of lading, commercial invoice and packing list or similar other forms or documents used for customs clearance and includes such documents electronically filed and system generated documents that are not required to be manually signed by the departmental officials;
(j) “customs-port” means any place declared under section 9 to be a customs-port;
(jj) Omitted
(k) “customs-station” means any customs-port, customs-airport or any land customs-station;
(kk) “detain”, in relation to goods, means to prohibit the disposal or use of the goods, pending the finalization of any proceedings under this Act in relation to the goods or the owner thereof;
[(kka) “documents” means a goods declaration, application for claim of refund, duty drawback or repayment of duty, import or export general manifest, passenger manifest, bill of lading, airway bill commercial invoice and packing list or similar other forms or documents used for customs clearance or making a declaration to Customs, whether or not signed or initialed or otherwise authenticated, and also includes,-
(i) any form of writing on material, data or information recorded, transmitted, or stored by means of a tape recorder, computer or any other device, and material subsequently derived from information so recorded, transmitted or stored;
(ii) a label, marking or other form of writing that identifies anything of which it forms part or to which it is attached by any means;
(iii) a book, map, plan, graph, or drawing; and
(iv) a photograph, film, negative, tape, or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced.
(kkb) “electronic duty drawback filing and payment system” means Electronic Duty Drawback Filing and Payment System as specified by the rules;]
(kkk) “export manifest” means export manifest delivered under sub-section (2) of section 53 and includes electronically filed export manifest;
(l) “goods” means all movable goods and includes-
(i) conveyance,
(ii) stores and materials,
(iii) baggage, and
(iv) currency and negotiable instruments;
(la) “goods declaration” means a goods declaration filed under sections 79, 104, 131, 139 or 144 and includes a goods declaration electronically filed;]
(lb) “import manifest” means import manifest delivered under section 43 or 44 as the case may be and includes electronically filed import manifest;
(m) “land customs-station” means any place including an inland river port declared under section 9 to be a land customs-station;
(n) “master” when used in relation to any vessel, means any person, except a pilot or harbour master, having command or charge of such vessel;
(o) “officer of customs” means an officer appointed under section 3;
(p)
“
(pa) “person” includes a copmay, an association, a body of individuals whether incorporated or not;
(q) “person-in-charge” means –
(i) in relation to a vessel, the master of the vessel;
(ii) in relation to an aircraft, the commander or pilot in charge of the aircraft;
(iii) in relation to a railway train, the conductor, guard or other person having the chief direction of the train;
(iv) in relation to any other conveyance, the driver or any other person having control of the conveyance;
(qa) “principal” means the owner of the goods or the person primarily responsible for making a declaration to Customs under this Act and includes the person in-charge of the conveyance, carrier, custodian of cargo, and the terminal operator;
(rr) “seize” means to take into custody, physically or otherwise, goods in respect of which some offence has been committed or is believed to have been committed under this Act or the rules, and all cognate words and expressions shall be construed accordingly;
(s) “smuggle” means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or evading payment of customs-duties or taxes leviable thereon,-
(i) gold bullion, silver bullion, platinum, palladium, radium,
precious stones, antiques, currency, narcotics and narcotic and
psychotropic substances; or
(ii) manufactures of gold or silver or platinum or palladium or
radium or precious stones, and any other goods notified by the Federal Government in the official Gazette, which, in each case, exceed fifty thousand rupees in value; or
(iii) any goods by any route other than a route declared under
section 9 or 10 or from any place other than a customs-station.
and includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly;
(ss) “Special Judge” means a Special Judge appointed under Section 185;
(sss) “Special Appellate Court” means a Special Appellate Court constituted under section 46 of the Prevention of Smuggling Act,1977;
(t) “warehouse” means any place appointed or licensed under section 12 or section 13;
(u) “warehousing station” means a place declared as a warehousing station under section 11;
(v) “wharf” means any place in customs-port approved under clause (b) of section 10 for the loading and unloading of goods or any class of goods;
(w) arrears” means the amount of any duty, surcharge, fine or penalty [or any other amount] which is adjudged or demanded through an adjudication order passed by the competent authority or the amount referred to in the notice under sub-section (2) of section 202 which is recoverable in full or in part and is not paid within the time prescribed;
(x) “default” means the failure to pay the outstanding arrears as defined in clause (w); and
(y) ”defaulter” means the person and in the case of a company or firm every director or partner of the company or, as the case may be of the
firm and of which he is a director or a partner of proprietor, and includes the guarantor who fails to pay outstanding arrears.
Court Decisions
Bail--Grant of--Prayer
for--Recovery of huge quantity of foreign smuggled cloth and other items from a
bus--Role ascribed to petitioners was that when vehicle was checked they were
allegedly found in possession of foreign cloth and other smuggled
items--Offences with which petitioners have been charged entail maximum
punishment of six years imprisonment and fine not exceeding ten times value of
such goods, as such prohibitory clause of S. 497(1) Cr.P.C. is not
attracted--Even otherwise it is yet to be determined during trial whether stuff
recovery from petitioners fall within definition of smuggled items and that
whether provisions of S. 156(1) (89) of Customs Act are attracted--It also
needs to be thrashed out as to whether petitioners were merely driver and
cleaner respectively or had any proprietary interest in cloth or other
items--Case of petitioners falls within contemplation of further inquiry
entitling them to concession of bail--Petition accepted. PLJ 2009 Cr.C. (
Smuggled
goods--Value of confiscated vehicles exceed Rs. 50,000 each and no
Custom duty and taxes had been paid on them--Vehicles in question, thus, fell
within ambit of smuggled goods. PLJ 2003
Ship brought into port declared to be Cutoms
port to terms of S. 9----Sub clause (b) of S. 2 (S) not attracted. P L J 1980
Accused who was found carrying emeralds,
foreign and local currency was held up at the Airport and Customs Authorities
confiscated goods and imposed fine on accused--Export of emeralds on relevant
date was not banned but was only subject to clearance from State Bank as a mere
formality, provisions of S. 2(s) of Customs Act, 1969 were not attracted in the
matter--Ends of justice could not be defeated on grounds of mere technical or
procedural formalities--Order with regard to confiscation of emeralds was set
aside and Authorities were directed to return same to accused and to remit
penalty imposed upon accused in that respect, but as restriction was imposed on
export of foreign and local currency at relevant date, order confiscating said
currency and imposing penalty thereon was upheld. PLJ 1999
Confiscation of smuggled goods i.e.
emeralds/precious stones and foreign/local currency etc. and arrest of
accused--Challenge to--Order of Authorities was challenged on two grounds,
firstly, that statutory notice under S. 171, Customs Act, 1969 was not given to
accused before taking action against him, secondly, that accused had been
acquitted from charge of smuggling vide order passed by Special Customs
Judge--Legality--Provisions of S. 171, Customs Act, 1969 was meant to inform
persons who were arrested or their property was seized, on grounds thereof, so
that said persons could defend themselves--Provisions of S. 171 being
procedural in nature and nothing was either in said section itself or :n any
other provision of Customs Act, 1969, specifying any consequences for
non-compliance thereof, strict compliance of section would not be necessary if
it could be established that its purpose was served through other means i.e.
grounds of seizure or arrest were conveyed by way of other documents--Accused
having been made aware of nature and grounds for his arrest and seizure of his
goods, before trial before Customs Court, proceedings before Customs
Authorities were not illegal--Accused was not acquitted by Customs Judge on
merits, but proceedings against accused were quashed under S. 265-K, Cr.P.C. on
application moved by accused on basis that no notice was served upon him as per
S. 171 of Customs Act, 1969--Accused, therefore, was not acquitted' of charge
of smuggling by Special Customs Judge in circumstances PLJ 1999 Karachi 673
Smuggling of emeralds/precious stones and foreign/local
currency--Accused was found carrying emerald/precious stones and foreign/local
currency--Accused was held up at Departure Lounge by Customs
Authorities--Accused challenged order of confiscation of goods on the ground
that he having not been given any opportunity to make a declaration as required
under S. 139 of Customs Act, 1969 at time of his arrest--Status--Accused was
apprehended in Departure Lounge of Airport after clearance from Immigration
Authorities and in possession of his boarding card which was much beyond
customs counter--Such act of accused amounted to an attempt to smuggle, as had
he not been apprehended, he would have definitely been able to take confiscated
items out of country--Orders confiscating goods could not be termed as
defective within meaning of S. 139 of Customs Act, 1969 in circumstances.
PLJ 1999
Smuggled goods--Value of confiscated vehicles exceed Rs. 50,000 each and no
Custom duty and taxes had been paid on them--Vehicles in question, thus, fell
within ambit of smuggled goods. PLJ 2003
CHAPTER II APPOINTMENT OF OFFICERS OF CUSTOMS AND THEIR POWERS
CHAPTER II
APPOINTMENT OF OFFICERS OF CUSTOMS AND OTHER POWERS
3. Appointment of officers of customs.- For the purposes of this Act, the Board may, by notification in the official Gazette, appoint, in relation to any area specified in the notification, any person to be —
(a) a Chief Collector of Customs;
(b) a Collector of Customs;
(c) a Collector of Customs (Appeals);
(d) an Additional Collector of Customs;
(e) a Deputy Collector of Customs;
(f) an Assistant Collector of Customs;
(g) an officer of Customs with any other designation.
3A. The Directorate General (Intelligence and Investigtion), Customs and Central Excise.- The Directorate General (Intelligence and Investigation), Customs and Central Excise, shall consist of a Director General and as many Directors, Additional Directors, Deputy Directors and Assistant Directors and such other officers as the Board may, by notification in the official Gazette, appoint.
3B. Directorate General of Inspection and Internal Audit.- The Directorate General of Inspection and Internal Audit shall consist of a Director General and as many Directors, Additional Directors, Deputy Directors and Assistant Directors and such other officers as the Board may, by notification in the official Gazette, appoint.
3C. Directorate General of Training and Research.- The Directorate General of Training and Research shall consist of a Director General and as many Directors, Additional Directors, Deputy Directors and Assistant Directors and such other officers as the Board may, by notification in the official Gazette, appoint.
3D. Directorate General, Valuation and Post-Clearance Audit.- The Directorate General Valuation and Post-Clearance Audit shall consist of a Director General and as many Directors, Additional Directors, Deputy Directors, Assistant Directors and such other officers as the Board may, by notification in the official Gazette, appoint.
3E. Powers and functioning of the Directorates, etc.- The Board may specify the functions, jurisdiction and powers of the Directorates specified in the preceding sections and their officers by notification in the official Gazette.
Court Decisions
Latest Law Cases
Goods, unregistered and banned--Confiscation of seized goods--Appeals before Collector dismissal of--Reference before High Court and orders passed by forums below upheld--Leave to appeal--The goods were formally seized after providing enough opportunity to the petitioner to submit the proof of import authorization--No respond to the query made by the customs authorities despite lapse of 1« months--Show-cause notice issued to petitioner but no satisfactory reply submitted--Tribunal after thoroughly dilating upon the issue of show-cause notice rightly concluded that it was within time--Report from Health Ministry is available on the record to show that the goods, so imported by the petitioner, were not only unregistered but banned in Pakistan on account of causing adverse effect to human being--Leave to appeal refused. PLJ 2009 SC 213 = 2009 Law vision 685
4. Powers and duties of officers of customs.- An officer of customs appointed under section 3 shall exercise such powers and discharge such duties as are conferred or imposed on him by or under this Act; [or the Rulrs made there under]and he shall also be competent to exercise all powers and discharge all duties conferred or imposed upon any officer subordinate to him:
Provided that, notwithstanding anything contained in this Act or the rules, the
Board may, by general or special order, impose such limitations or conditions
on the exercise of such powers and discharge of such duties as it thinks
fit.
5 “Delegation of powers.- (1) The Board may, by notification in the official Gazette and subject to such limitations or conditions as may be specified therein, empower by name or designation-
(a) any Additional Collector of Customs or Deputy Collector of Customs to exercise any of the powers of a Collector of Customs under this Act;
(b) any Deputy Collector of Customs or Assistant Collector of Customs to exercise any of the powers of an Additional Collector of Customs under this Act;
(c) any Assistant Collector of Customs to exercise any of the powers of a Deputy Collector of Customs under this Act; and
any other officer of customs with any other designation.
(2) Unless the Board in any case otherwise directs, the Director General,
Director, and Collector may authorize any officer to
exercise within any specified area any of the powers of the Director General,
Director, Collector or any other officer of Customs under this Act.
6. Entrustment of functions of customs officers to certain other officers.- (1) The Board may, by notification in the official Gazette, entrust, either conditionally or unconditionally, any functions of any officer of customs under this Act to any officer of the Federal Government, Provincial Government, State Bank of Pakistan and Scheduled Banks:
Provided that where any officer in performance of his functions under this section commits any offence under this Act, such officer shall, in addition to any other penalty which may be imposed under any other law for the time being in force,
be liable to such punishment as is specified in sub-section (1) of section 156 for the offence committed by him.
(2) No officer entrusted with any functions of any officer of customs under sub-section (1) shall interfere in any manner in the performance or discharge of any duty by an officer of customs in places notified under section 9.
Court Decision
Confiscation of contraband goods but release of tractor
and trolly:-- Orders passed by adjudicating authorities concerning
disposal of goods and conveyance are binding on seizing Officer or Custom
Officer notified under Section 6 of Act--Held: Respondent has absolutely no
authority to disregard or frustrate decision of custom authorities--Held
further: Action of respondent concerning with-holding of tractor and trolly is
without lawful authority and in excess of jurisdiction vested in him. PLJ 1991
7. Assistance to the officers of customs.- All officers of Central Excise, Police, and the Civil Armed Forces, and all officers engaged in the collection of land-revenue are hereby empowered and required to assist officers of customs in the discharge of their functions under this Act.
8. Exemption from service on jury or inquest or as assessors.- Notwithstanding anything contained in any other law, no officer of the Board or Collector of Customs and no other officer of customs whom the Board or Collector of Customs deems it necessary to exempt on grounds of public duty, shall be compelled to serve on any jury or inquest or as an assessor.
Court Decision
Smuggling of Pakistan and foreign currency :-- Prosecution story that petitioner and his companions were confronted by officials of Coastal Guard when they were in process of taking Pak and foreign currency to sea shore to smuggle it out of Pakistan but as a result of exchange of firing they could not succeed and petitioner alongwith co-accused was apprehended at the spot with currency--Held : Act of taking of Pakistan Currency by petitioner to sea shore is not smuggling but recovery of foreign currency from secret cavities of vehicle and failure of petitioner to explain its lawful possession would give rise to a presumption of guilt under Section 187 of Customs Act, 1969--However, this special provision for raising presumption of guilt can only be pressed into service after basis onus of proving illegal possession of goods is discharged by prosecution and no such presumption should be raised without taking into consideration explanation of accused and if explanation given by accused reasonably casts a doubt in correctness of allegations, benefit of such doubt must be given to accused. PLJ 2003 SC 462
Seizure of Pak Currency and registration of case:-- Circumstances under which the petitioner was arrested with Pak Currency and the explanation given by him regarding the possession of currency would make the arrest of the petitioner, the seizure of Pak Currency and registration of case illegal. Petitioner has claimed the possession of Pak Currency but denied the possession of foreign currency which was recovered from the secret cavities of the vehicle in which petitioner and his companions were traveling--Thus the part of the transaction relating to the recovery of foreign currency from the secret cavities of vehicle would constitute an offence under Section 156(1) (8) of the Customs Act 1969. whereas the part relating to the recovery of Pak Currency from the possession of petitioner while traveling in the territory of Pakistan would not be an offence under the Customs Act 1969, therefore, the seizure of Pak Currency and registration of case under Customs Act 1969 to that extent was illegal and consequently, the trial of the petitioner before the Special Judge Customs and also the adjudication proceedings before the departmental authorities would be without jurisdiction and illegal. PLJ 2003 SC 462
Except
presence of petitioner at sea shore with Pak. and foreign currency, there was
no evidence to suggest that he was making an attempt to smuggle currency out of
Recovery of narcotic substances from the possession of appellants--Conviction and sentence awarded to appellants as confirmed by High Court assailed--Leave to appeal was granted to examine whether offence under S. 156(1)(S) f Customs Act, 1969 and offences under S. 9(a)(b)(c) of Control f Narcotics Substances Act, 1997 were same offences and if an accused was convicted/sentenced under any f the provisions out f both f those laws, the trial/conviction/sentence of accused under other law would be bar in view f provisions f Art. 13(a) of the Constitution and S. 403 CrP.C. PLJ 2002 SC 332
Leave to appeal was granted by Supreme Court to consider; whether offences for which accused persons were being tried under Ss. 6, 7, 8, 9(c), 14 & 15 of Control of Narcotic Substances Act, 1997, were same for which they had earlier been tried under S. 156(1)(8) of Customs Act, 1969, as such, was violative of Art. 13 of Constitution. PLJ 2001 SC 1340
Prosecution under Customs Act, 1969 and Control of Narcotic Substances Act, 1997--Under proviso to S. 72 of Control cf Narcotic Substances Act, 1997, offences relating to narcotic drugs psychotropic substances were to be tried under Control of Narcotic Substances Act, 1997, notwithstanding anything contained in Customs Act, 1969 or any other law--Special Courts created under Control of Narcotic substances Act, 1997, had exclusive jurisdiction to try such offences to exclusion of any other Court under; any law inclusive of Customs Act, 1969--Prosecution of accused persons under Customs Act, 1969, was without jurisdiction--Proceedings taken under provisions of Customs Act, 1969, conviction recorded and sentence awarded were illegal as same had been taken, recorded and passed by a Court which was not vested with jurisdiction to proceed with matter–Such proceedings from very inception were coram non judice--Quashing of prosecution under provisions of Control of Narcotic Substances Act, 1997, in relation to conviction recorded and sentence passed by Special Court was not vested with jurisdiction to proceed in matter--Where conviction recorded and sentence awarded to accused persons by, Court under provisions of Customs Act, 1969, were without lawful authority and of no legal effect, such proceedings were quashed by Supreme Court--Trial of accused persons was valid under provisions of Control of Narcotic Substances Act, 1997 was directed to proceed with Trial--Supreme Court, however, observed that confession, if any, made by accused during trial under Customs Act, 1969 was not of any legal effect and trial was to be conducted independently in accordance with law. PLJ 2001 SC 1340
Attempt to Smuggle--Whether accused
can be convicted and sentenced simultaneously under subsections (8) and (89) of
Section 156 of Customs Act--Question of--If a person has been found without
lawful excuse in possession of smuggled goods etc. he would be dealt with under
subsection (89) of section 156 of Customs Act and if evidence produced by prosecution
establishes that accused was smuggling goods outside or-into Pakistan, then he
would be liable to be dealt with under sub-section (8) of Section 156 of
Customs Act, 1969 and in such circumstances, he would not be punished under
sub-section (89) of section 156 of Customs Act. 1998 P Cr. L J 411 = PLJ 1998
Bail in case of Recovery of Heroin--Accused/petitioners
apprehended by Inspector Rangers in border belt area--Since about 11 months
petitioners were behind the bars without any progress in trial--Search was made
in violation of mandatory provisions of law--Bail was allowed. PLJ 1997 Cr-C- (
NLR 1989 Cr. 201, NLR 1989 UC 747, PLD 1988 Lah. 146, 1993 P.Cr.L.J. 500 ref
CHAPTER III DECLARATION OF PORTS, AIRPORTS, LAND CUSTOMS STATIONS, ETC
CHAPTER III
DECLARATION OF PORTS, AIRPORTS, LAND CUSTOMS-STATIONS, ETC.
9. Declaration of customs–ports, customs airports, etc.- The Board may, by notification in the official Gazette, declare:
(a) the places which alone shall be customs-ports or customs-airports for the clearance of goods or any class of goods imported or to be exported;
(b) the places which alone shall be land customs-stations for the clearance of goods or any class of goods imported or to be exported by land or inland waterways;
(c) the routes by which alone goods
or any class of goods specified in the notification may pass by land or inland
waterways into or out of
(a) the places which alone shall be ports for the carrying on of coastal
trade with any specified customs-ports in
(b)
what shall for
the purposes of this Act be deemed to be a custom house and the limits thereof.
Court Decisions
Latest Law Cases
Bail, grant of--No fault of accused in conclusion of trial--On
advice of Chief Justice of High Court, a Special Appellate Court was
constituted but because of PCO Judge, although Supreme Court had not restrained
from working--Accused was behind the bars for the last two years--Challan had
been submitted before the Court one year ago and till today not a single
witness had been examined--No fault of the accused in conclusion of the
trial--Maximum sentence which can be awarded in the instant offence was 10
years, so on the ground of delay, bail was allowed. PLJ 2010 Cr.C. (
Bail--Dismissed--`Robbery'--Involvement of petitioner was fully
established during investigation--Recovery of pistol, wrist watch, fold
ornaments including pair of ear-rings speaks heavily against him--Injury on
belly of victim, was a stamp of truth of FIR--Offence committed by petitioner
was hideous in nature--Granting him bail, would amount to trivilize and play
down gravity of offence committed by him--Petitioner appeared to be a criminal
with considerable clouts--He was not entitled to be released on bail--Petition
dismissed. PLJ 2009 Cr.C. (
Route of goods as aged by clause (b) of S. 2 (S)—Ship brought into
port declared to be Customs port to terms of S. 9----Sub clause (b) of S. 2 (S)
not attracted. P L J 1980
10. Power to approve landing places and specify limits of customs-stations.- The Board may, by notification in the official Gazette:-
(a) specify the limits of any customs-station; and
(b) approve proper places in any customs-station for the loading and unloading of goods or any class of goods.
11. Power to declare warehousing stations.- The Board may, by notification in the official Gazette, declare places to be warehousing stations at which alone public warehouses may be appointed and private warehouses may be licensed.
12. Power to appoint or licence public warehouses.- (1) At any warehousing station, the Collector of Customs may, from time to time, appoint or licence public warehouses wherein dutiable goods may be deposited without payment of customs-duty.
(2) Every application for a licence for a public warehouse shall be made in such form as may be prescribed by the Collector of Customs.
(3) A licence granted under this section may be cancelled by the Collector of Customs for infringement of any condition laid down in the licence or for any violation of any of the provisions of this Act or any rules made thereunder,
after the licensee has been given proper opportunity of showing cause against the proposed cancellation.
(4) Pending consideration whether a licence be cancelled under sub-section (3), the Collector of Customs may suspend the licence.
13. Power to licence private warehouses.- (1) At any warehousing station, the Collector of Customs may, from time to time, licence private warehouses wherein dutiable goods may be deposited without payment of customs-duty.
(2 ) Every application for a licence for a private warehouse shall be made in such form as may be prescribed by the Collector of Customs.
(3) A licence granted under this Section may be cancelled by the Collector of Customs for infringement of any condition laid down in the licence or
for any violation of any of the provisions of this Act or any rules made thereunder, after the licensee has been given proper opportunity of showing cause against the proposed cancellation.
(4) Pending consideration whether a licence be cancelled under sub-section (3), the Collector of Customs may suspend the licence.
Court Decision
Customs duty--A tax--Customs duty is nothing, but a tax because it is imposed upon importer or exporter on import and export of goods while fee on the other hand is received for rendering certain services for benefit of payees. PLJ 2000 SC 447
Tax a charge by Government--Term tax has been defined in Black’s Law Dictionary as a charge by Government on income of an individual, corporation or trust as well as value of state or goods--Objective necessitating the tax is to generate revenue to be used for needs of public; a pecuniary burden laid upon individual or property to support the, Government and is a payment exacted by the legislative authority--According to this dictionary, the essential characteristics of a tax are that it is not a voluntary payment or donation, but an enforced contribution, exacted pursuant to legislative authority--In Webster’s Encyclopedic Unabridged Dictionary, tax is defined as a sum of money demanded by a Government for its support for specific facilities, a burden some charge, obligation or demand in consideration of the possession or occurrence of income, goods, sales, etc--A customs duty is nothing, but a tax. PLJ 2000 SC 447
Exemption
from customs duty--Claim of--Confiscation of imported vehicle--Importer
claimed exemption from customs duty etc. under Notification No. SRO 783(1)/92,
dated 19.8.1992 and got released imported vehicle against facility of
exemption--State Bank in view of Explanation of above said Notification issued
show-cause notice to importer to the effect that importer was not entitled to
benefit of said Notification and his vehicle was confiscated--State Bank’s
letter which was issued subsequent to filing of Bill of Entry, was not in
consonance of Notification and importer had fulfilled legal conditions--Letter
of State Bank which was not more than an executive instruction, could not be
operative retrospective--Even otherwise facility of exemption of customs duty
etc. having already been extended to 4 other importers under said Notification,
importer was also entitled to said facility. PLJ 1999
Constitutional
proceedings:- Where a
particular provision of law which was aimed at depriving citizens of their
rights as to property or person, was silent as to prior notice before
commencement of the proceedings, such notice would be read into that provision
of law--This reflects the maxim audi alteram partem—Authority was directed to
decide the case in accordance with law. Licence of petitioner operate
Diplomatic Duty Free Bonded Warehouse was suspended by Authority--Allegation
that licence was being misused--Matter was further probed through a domestic
enquiry--Such allegation, thus, could not be agitated in Constitutional
proceedings. PLJ 1999
14. Stations for officers of customs to board and land.- The Collector of Customs may, from time to time, appoint, in or near any customs-port, stations or limits at or within which vessels arriving at or departing from such port shall bring to for the boarding or landing of officers of customs, and may, unless separate provisions therefor have been made under the Ports Act,1908 (XV of 1908) direct at
what particular place in any such port vessels, not brought into port by pilots, shall anchor or moor.
14-A. Provision of accommodation at Customs-ports, etc.- Any agency or person managing or owning a customs-port, a customs-airport or a land customs-station shall provide at its or his own cost adequate accommodation to customs staff for offices, examination of goods, detention and storage of goods and for other departmental requirements to be determined by the Collector of Customs and shall pay utility bills, rent and taxes in respect of such accommodation.
Court Decisions
Latest Law Cases
Bail, grant of--No fault of
accused in conclusion of trial--On advice of Chief Justice of High Court, a
Special Appellate Court was constituted but because of PCO Judge, although
Supreme Court had not restrained from working--Accused was behind the bars for
the last two years--Challan had been submitted before the Court one year ago
and till today not a single witness had been examined--No fault of the accused
in conclusion of the trial--Maximum sentence which can be awarded in the
instant offence was 10 years, so on the ground of delay, bail was allowed. PLJ 2010 Cr.C. (
Bail--Dismissed--`Robbery'--Involvement
of petitioner was fully established during investigation--Recovery of pistol,
wrist watch, fold ornaments including pair of ear-rings speaks heavily against
him--Injury on belly of victim, was a stamp of truth of FIR--Offence committed
by petitioner was hideous in nature--Granting him bail, would amount to
trivilize and play down gravity of offence committed by him--Petitioner
appeared to be a criminal with considerable clouts--He was not entitled to be
released on bail--Petition dismissed. PLJ
2009 Cr.C. (
Bail, grant of--Medical
ground--Further inquiry--Principle governing the grant of bail in non-bailable
cases, accused would be entitled to concession of bail on merits as well as on
medical ground--Bail was granted. PLJ
2008 SC 951
CHAPTER IV PROHIBITION AND RESTRICTION OF IMPORTATION AND EXPORTATION
CHAPTER IV
PROHIBITION AND RESTRICTION OF IMPORTANT AND EXPORTATION
15. Prohibitions.- No goods specified in the
following clauses shall be brought into or taken out of
(a) counterfeit coins, forged or counterfeit currency notes, and any other
counterfeit product;
(b) any obscene book, pamphlet, paper, drawing, painting, representation,
figure, photograph, film, or, article, video or audio recording, CDs or recording on any other media;
(c) goods having applied thereto a counterfeit trade mark within the
meaning of the Pakistan Penal Code, 1860 (Act XLV of 1860), or a false trade description within the meaning of the Copyright Ordinance, 1962 (XXXIV of 1962), the Registered Layout-Designs of Integrated Circuits Ordinance, 2000 (XLIX of 2000), the Registered Designs Ordinance, 2000 (XLV of 2000), the Patents Ordinance, 2000 (LXI of 2000), and the Trade Marks Ordinance, 2001 (XIX of 2001), or goods imported or exported in contravention of the provisions of section 32;
(d) goods made or produced outside Pakistan and having applied thereto any name or trade mark, being or purporting to be the name or trade mark of any manufacturer, dealer or trader in Pakistan, unless,-
(i) the name or trade mark is, as to every application thereof, accompanied by a definite indication of the goods having been made or produced in a place outside Pakistan; and
(ii) the country in which that place is situated is in that indication shown in letters as large and conspicuous as any letter in the
name or trade mark, and in the same language and character as the name or trade mark;
Designs Ordinance, 2000 (XLV of 2000), and the Patents Ordinance, 2000 (LXI of 2000), respectively; and
(f)
goods made or produced outside Pakistan and intended for sale, and having
applied thereto, design in which copyright exists under the Copyright
Ordinacne, 1962 (XXXIV of 1962), the Registered Layout-Designs of Integrated
Circuits Ordinance, 2000 (XLIX of 2000), the Registered Designs Ordinance, 2000
(XLV of 2000), the Patents Ordinance,
2000 (LXI of 2000), and the Trade Marks Ordinance, 2001 (XIX of 2001), in
respect of the class to which the goods belong or any fraudulent or obvious
imitation of such design, patent, copyright except when the application of such
design has been made with the licence or written consent of the registered
proprietor, right holdeer of the design, patent or copyriht, as the case maya
be.
Court Decisions
Latest Law Cases
Bail--Dismissed--`Robbery'--Involvement of petitioner was fully
established during investigation--Recovery of pistol, wrist watch, fold
ornaments including pair of ear-rings speaks heavily against him--Injury on
belly of victim, was a stamp of truth of FIR--Offence committed by petitioner
was hideous in nature--Granting him bail, would amount to trivilize and play
down gravity of offence committed by him--Petitioner appeared to be a criminal
with considerable clouts--He was not entitled to be released on bail--Petition
dismissed. PLJ 2009 Cr.C. (
16. Power to prohibit or restrict importation and exportation of goods.- The Federal Government may, from time to time, by notification in the official Gazette, prohibit or restrict the bringing into or taking out of Pakistan of any goods of specified description by air, sea or land.
Court Decision
Mis-declaration of imported goods so as to avoid customs
duty and sales tax--Imposition of fine--Dismissal of appeal by High
Court--Legality--Perusal of record coupled with findings of Customs Central
Excise and Sales Tax Appellate Tribunal and the High Court clearly showed that
petitioner had mis-declared description of goods and claimed evasion of tax
under S.R.O. No. 602 which fact was evident from reply to show-cause notice
wherein he had not claimed any concession under S.R.O. No. 643, thus, stance
taken by petitioner at appellate stage by moving application for bringing
amendment in memorandum of appeal to the extent that in place of SRO No. 602,
SRO No. 643 be substituted was rightly declined--Only 10 percent of total
consignment having been examined by customs staff, petitioner was rightly
afforded benefit of 90 per cent of goods by Tribunals as well as by the High
Court--Even otherwise, appeal before High Court was not competent in as much
as, Tribunal had not referred any question of law arising out of the order to
High Court for determination--Leave to appeal against judgment of High Court
was thus, refused. 2004 SCMR 545 =PLJ 2004 SC 70
Mis-declaration of imported goods so as to avoid customs duty
and sales tax--Imposition
of fine--Dismissal of appeal by High Court--Legality--Perusal of record coupled
with findings of Customs Central Excise and Sales Tax Appellate Tribunal and the
High Court clearly showed that petitioner had mis-declared description of goods
and claimed evasion of tax under S.R.O. No. 602 which fact was evident from
reply to show-cause notice wherein he had not claimed any concession under
S.R.O. No. 643, thus, stance taken by petitioner at appellate stage by moving
application for bringing amendment in memorandum of appeal to the extent that
in place of SRO No. 602, SRO No. 643 be substituted was rightly declined--Only
10 percent of total consignment having been examined by customs staff,
petitioner was rightly afforded benefit of 90 per cent of goods by Tribunals as
well as by the High Court--Even otherwise, appeal before High Court was not
competent in as much as, Tribunal had not referred any question of law arising
out of the order to High Court for determination--Leave to appeal against
judgment of High Court was thus, refused. PLJ
2004 SC 70
Bail--Grant
of--Allegation that accused journeyed from Karachi to Islamabad and
travelled back with other co-accused from Islamabad to Karachi--During flight
entered into toilet but could not get gold already concealed therein by
co-accused--Gold recovered from toilet of air craft by custom
officials--Applicant not member of that set of accused persons who travelled
from Gulf to Pakistan with smuggled gold--Whether accused was guilty of any
offence attracted by any provision of Customs Act 1969--Question of—Held Gold
had not been put in toilet by present applicant while travelling from Islamabad
to Karachi as it was already in toilets before aircraft started its journey as
domestic flight from Islamabad to Karachi--If Customs Officer had waited till
landing of aircraft to start his action against these smugglers, it would have
been possible to arrest present applicant with some quantity of gold--In
absence of any recovery of smuggled gold from applicant and without any
specific role played by him in this trip, it may not be possible for this court
to reach any definite conclusion regarding offence committed by applicant with reference
to section 178 of Customs Act or Section 202 PPC. It is only trial court which
can decide this point with certainty, and that too, after recording evidence in
this case about exact nature of offence committed by accused--These realities
have made out a case of further enquiry within meaning of section 497(2)
Cr.P.C. -Bail granted. PLJ 1997 Cr.C- (Karachi)
120 Previous bail application of the accused was dismissed as
withdrawn by High Court with the permission to file fresh application after
final challan was submitted which was likely to be submitted within two to
three weeks--Such order did not give the impression and the sense as drawn by
the counsel of the accused in the fresh bail application and the same could not
be treated a fresh ground to move the present application--Entertaining the
present application meant to modify the previous order without any convincing
ground and such act of the Court could be the worst precedent--Move of the
accused’s counsel in filing the present bail application which was merely a
reproduction of the previous application in verbatim, in the circumstances, had
done nothing except to shock the feelings of the Court--Moving an application
with any such background could never be appreciated in any manner on any ground
and under any impression, expectation or circumstances., whatsoever they might
be, particularly at the cost of the Court’s integrity, respect and honour--Bail
application was dismissed in circumstances. PLJ
1996 Cr.C. (
Newly formed district of Kohistan--Provisions
of Customs Act whether extended to area in question--Tribal area of Kohistan is
the same area which was once part of Swat District where Regulation No. III of
1975 was extended and thus, Customs Act, 1969 was made applicable, therefore,
Customs Act 1969, would be deemed to have been extended to Tribal Area of
Kohistan District--Judgment of High Court to the contrary was set aside and
case was remanded for decision afresh on merits. PLJ
2005 SC 631 PLD 1969 SC 485 and PLD 1995
Afghan
Transit Trade Agreement, 1965, Article X -- Tyres of Indian origin -- Import of --Ban on --
Challenge to -- Petitioner Company imported tyres and tubes from India to
Afghanistan -- Pakistan being transit State, withdrew transit facilities on
plea that stock in transit may not be smuggled hack in Pakistan --Whether
provisions of Customs Act are attracted and applicable to goods in transit
--Question of -- It would be wrong to say that moment goods crossed custom
barrier or entered into Pakistan territorial waters, they should be construed
to have been imported into Pakistan under Customs Act -- Held: Provisions of
Customs Act do not deal with goods in transit which were not really imported
into Pakistan--Petition accepted. PLJ 1993
Criminal Procedure Code, 1898 (V of
1898), Sched. II--Assistant
Commissioner's authority to seize goods on suspicion of being smuggled--In
terms of Schedule II of Cr.P.C. any offence punishable with sentence of three
years and upwards is cognizable offence--Offence under S. 156(89) Customs Act
1969 being punishable with sentence of more than three years is, as such,
cognizable and can be legally investigated by police or other officers having
been vested with powers of investigation ` under Cr.P.C.--Assistant
Commissioner as also Levies were thus, empowered , to seize and investigate
about goods suspected to be smuggled.PLJ
2003 Quetta 149
Newly formed district of Kohistan--Provisions of Customs Act whether extended
to area in question--Tribal area of Kohistan is the same area which was once
part of Swat District where Regulation No. III of 1975 was extended and thus,
Customs Act, 1969 was made applicable, therefore, Customs Act 1969, would be
deemed to have been extended to Tribal Area of Kohistan District--Judgment of
High Court to the contrary was set aside and case was remanded for decision
afresh on merits. PLJ 2005 SC 631 PLD
1969 SC 485 and PLD 1995
17. Detention, seizure and confiscation of goods imported in violation of section 15 or section 16.- Where any goods are imported into, or attempted to be exported out of, Pakistan in violation of the provisions of section 15 or of a notification under section 16, such goods shall, without prejudice to any other penalty to which the offender may be liable under this Act or the rules made thereunder or any other law, be liable to detention, for seizure or confiscation subject to approval of an officer not below the rank of an Assistant Collector of Customs, and seizure for confiscation through adjudication, if required.
CHAPTER V LEVY OF, EXEMPTION FROM, AND REPAYMENT OF, CUSTOMS DUTIES
CHAPTER V
LEVY OF, EXEMPTION FROM, AND REPAYMENT OF, CUSTOMS-DUTIES
18. Goods dutiable.- (1) Except as hereinafter provided, customs duties shall be levied at such rates as are prescribed in the First Schedule or under any other law for the time being in force on,-
(a)
goods imported into
(b) goods brought from any foreign country to any customs station, and without payment of duty there, transshipped or transported for, or thence carried to, and imported at any other customs-station; and
(c) goods brought in bond from one customs station to another.
(2) No export duty shall be levied on
the goods exported from
(3) The Federal Government may, by notification in the official Gazette, levy, subject to such conditions, limitations or restrictions as it may deem fit to impose, a regulatory duty on all or any of the goods imported or exported, as specified in the First Schedule at a rate not exceeding one hundred per cent of the value of such goods as determined under section 25.
(4) The regulatory duty levied under sub-section (3) shall –
(a) be in addition to any duty imposed under sub-section (1) or under any other law for the time being in force; and
(b) be leviable on and from the day specified in the notification issued under that sub-section, notwithstanding the fact that the
issue of the official Gazette in which such notification appears is published at any time after that day.
[(5) The Federal Government may, by notification in the official Gazette, levy an additional customs-duty on such imported goods as are specified in the First Schedule, at a rate not exceeding thirty-five per cent of value of such goods as determined under section 25.
(6) The additional customs-duty levied under sub-section (5) shall be,-
(a) in addition to any duty imposed under sub-sections (1) and (3) or under any other law for the time being in force; and
(b) leviable on and from the day specified in the notification issued under that sub-section, notwithstanding the fact that the official Gazette in which such notification appears is published at any time after that day.]
Court Decision
Imposition of regulatory duty--Regulatory duty is neither fixed nor pre-determined--It is imposed in exercise of delegated authority by Government subject to limitations mentioned in clauses (2) to (4) of Section 18, Customs Act, 1969 in following manner:-
(i) Government while levying regulatory duty may impose such conditions as it may deem fit;
(ii) Regulatory duty may be imposed by Government on all or any of items mentioned in Ist Schedule to Act;
(iii) Rate of regulatory duty cannot exceed one hundred per cent. of value of goods, determined in accordance with Section 25 or 25B of Act;
(iv) Regulatory duty is in addition to any duty levied under Section 18(1) of Act or levied by or under any other law for time being enforced;
Under First Sched. to Customs Act, 1969 has nexus only with duty levied under S. 18(1) of Act, therefore, on language of exemption notification it was not possible to conclude that exemption granted under notification also applied to customs duty levied in addition to statutory duty under S. 18(2) of Act or under other laws for time being in force. PLJ 2000 SC 109
Petitioner
ordered import of plant and machinery when such imported goods were exempted
from customs duty--Earlier notification exempting such goods from customs duty
was, however, modified, whereunder exemption was withdrawn before imported
goods reached destination--Validity--Respondent claimed that goods in question,
being locally manufactured, import of the same was liable to customs
duty--Petitioner’s claim at that he had addressed letter to Ministry of
Industries, inquiring whether goods, he intended to import were locally
manufactured or not and that Ministry of Industries had addressed memorandum to
Central Board of Revenue and the Board of Revenue raised no objection which
fact indicated tacit consent of Board of Revenue--Petitioner on basis of such letter
had entered into contract and established letters of credit--Board of Revenue
had itself conceded in its reply to Ministry of Industries that some parts of
machinery were being manufactured locally while other parts were not being
manufactured locally., therefore, Custom General ‘Order issued by Central Board
of Revenue had no effect--Fact as to whether goods were being manufactured
locally could only be determined by Board of Revenue after factual
inquiry--Thus, rights which vested in petitioner on having entered into a firm
contract with foreign supplier could not be taken away by issuing notification
or Customs General Order--Respondent’s objection, that Constitutional petition
was not maintainable for having been directed against issuance of show cause
notice and no order detrimental to interest of petitioner having been
passed--Such objection could not prevail in that, Constitutional petition can
be maintained against issuance of show-cause notice--Besides, doctrine of
Promissory Estoppel being in issue, Constitutional petition was
maintainable--Show-cause notice issued to petitioner for payment of Customs
duty was declared to be without lawful authority and of no legal effect. PL. 2000
Regulatory duty--Imposition & exemption of--Regulatory
duty being transitory in nature is always imposed subject o limitation
contained in Section 18(2)(3)(4) of the Act and existence of conditions
essential for such levy, and Government can continue its imposition through a
fresh notification after expiry of earlier notification, if such conditions
still exist--In absence of specific mention of regulatory duty in an exemption
notification issued under Section 19 of the Act, the customs duty would not
include regulatory duty leviable under Section 18(2)--Exemption from regulatory
duty, cannot be claimed in general under notification giving such exemption
beyond financial year during which it is enforced. PLJ
2001
Imposition of Surcharge and Iqra Surcharge on consignment booked for AJK--Challenge to--Whether a custom duty can be imposed by authorities at Karachi on consignment booked for AJK being foreign country--Question of--AJK is a political and administrative entity within dominion of Pakistan with full autonomy and uninterrupted powers vested in it through its council, Assembly and Government except those excluded from its purview under Sec. 31(3)--AJK does not at all have a nation--State identity under International Law and Constitutional set-up under which it is governed--Petitioner did never claim before custom authorities that consignment is in transit for AJK which is a foreign territory--Held: Contention of petitioner that consignment charged for by custom authorities being in transit for foreign territory AJK is misconceived and provisions of Ss. 18 and 129 of Customs Act, 1969, are not attracted. PLJ 1999 AJK 1
Whether Regulartory Duty falls within definition of Customs Duty--Question of--Expression “Exemption from whole of customs Duty” includes, “Customs Duty” as defined under S. 18(1) and “Regulatory Duty” covered under S. 18(2) (3) of Customs Act 1969. PLJ 2003 SC 385
Such scheme known as “Non-Repatriable Investment Scheme’ enabled Pakistani’s living abroad to import new as well as second hand machinery from their own resources of foreign exchange--Goods imported by petitioner were converted by Table III of Finance Act 1999 which provided Zero per cent duty on those goods--On arrival of machinery in Pakistan, petitioner filed Bill of Entry on 7.3.2000 claiming exemption from payment of duties under table III of Finance Act, 1999, however, Government on the very date viz. 7.3.2000 had issued notification whereby table III was amended and entries relating to machinery imported by petitioner were omitted, thus, custom duties and other taxes became payable on imported goods--Validity--Petitioner’s contention that duty of which exemption was claimed having been levied by Finance Act, 1999 was not a duty of Customs under S. 18 of Customs Act, 1969 and as such S. 31-A, thereof was not applicable was devoid of merit--Provision of S. 18 of Customs Act, 1969 would show that the Act applies not only to duties levied under the Act but also to duties which have been levied by any other law for the time being in force which in present case would be Finance Act, 1999--Provision of S. 31-A Customs Act, 1969 applies not with standing anything contained in any other law for the time being in force and provides for payment of duty notwithstanding subsequent withdrawal of any Notification granting exemption--S. 31-A of Customs Act 1969, destroys vested right which had accrued to a person on account of his entry into a contract or opening letter of credit--Goods of petitioner were although, no liable to pay customs duty when he entered into contract but exemption having been withdrawn before goods could be cleared, petitioner could not avail of the same. PLJ 2000 Lahore 2033
Imposition of fine--Dismissal of appeal by High Court--Legality--Perusal of record coupled with findings of Customs Central Excise and Sales Tax Appellate Tribunal and the High Court clearly showed that petitioner had mis-declared description of goods and claimed evasion of tax under S.R.O. No. 602 which fact was evident from reply to show-cause notice wherein he had not claimed any concession under S.R.O. No. 643, thus, stance taken by petitioner at appellate stage by moving application for bringing amendment in memorandum of appeal to the extent that in place of SRO No. 602, SRO No. 643 be substituted was rightly declined--Only 10 percent of total consignment having been examined by customs staff, petitioner was rightly afforded benefit of 90 per cent of goods by Tribunals as well as by the High Court--Even otherwise, appeal before High Court was not competent in as much as, Tribunal had not referred any question of law arising out of the order to High Court for determination--Leave to appeal against judgment of High Court was thus, refused. 2004 SCMR 545 =PLJ 2004 SC 70
Pre-shipment inspection--Levy of service charges--Ultra vires of power of Legislature--Service charge as levied by virtue of S. 18(b) inserted into Act through Tax Adjustment Ordinance, charge is not a fee, because it is neither meant for benefit of payees nor its collection enables Government to carry out expense, for the benefit of importer--World has shrunk into a global village--With advancement of information and media technology, determination of prices is an easy task and quality of goods provided by Customs Act--For the foregoing reasons, Supreme Court is of the view that imposition of service charge as imposed under S. 18(b) of the Act towards pre-shipment inspection is ultra vires of powers of Federal Legislature. PLJ 2000 SC 447
Whether imposition of regulatory duty by Government under S. 18(2), Customs Act, 1969 on goods/items exempted from payment of customs duty leviable under S. 18(1) of said Act, was valid and recoverable and whether withdrawal of exemption from payment of customs duty and sales tax was applicable to cases where contracts for import of goods were entered into before withdrawal of exemptions--Leave granted to consider the questions. PLJ 2000 SC 109
In contradiction to customs duty levied under Section 18(1) of Customs Act, 1969, which is prescribed and predetermined, regulatory duty is neither prescribed nor pre-determined but is levied at a rate which may vary according to circumstances--Therefore, regulatory duty imposed by Government under Section 18(2) of Customs Act though as species of customs duty, is a duty in addition to duty prescribed under First Schedule to Act to meet a particular situation, not covered by statutory duty--Notification issued by Government under Section 19 of Act granting exemption wholly or partially from payment of customs duty prescribed under First Schedule to Act, could not therefore, cover customs duty subsequently levied by Government by way of additional customs duty to meet or cover a situation arising subsequent to issue of exemption notification--If Government intended to exempt any future levy of customs duty as well while granting exemption from existing prescribed customs duty, it could provide so in exemption notification--As exemption notifications did not exempt goods which were exempted from statutory customs duty, also from payment of regulatory duty, exemption did not apply to regulatory duty imposed by Government subsequently although regulatory duty may be a species of customs duty. PLJ 2000 SC 109
Goods dutiable--Date for determination of value and rate of import duty--Entry for home consumption or warehouse--Chargeability of duty having arisen, any change in rate of customs duty or imposition of additional duty of customs, is to be determined with reference to dates of filing of bill entry for home consumption or taking out goods from bonded warehouses as provided in S. 30, Customs Act, 1969--Rate of duty applicable to any imported goods under S. 30 of Act is duty which is applicable on date of filing of bill of entry for home consumption under S. 79 of Act and in case of goods cleared from bonded warehouse on date goods are ex-bonded from warehouse. PLJ 2000 SC 109
Imposition of regulatory duty--Section 31-A, Customs Act, 1969, provides that for purposes of Sections 30 and 31 of Act, rate of duty applicable to goods includes amount of duty imposed
under Section 18 of Act, Section 2 of Finance Ordinance, 1982 and Section 5 of Finance Act, 1985, in addition to amount of customs duty that may become payable as a consequence of withdrawal of whole or any part of exemption or concession from duty whether before or after conclusion of contract or agreement for sale of goods or opening of letters of credit in respect of contract notwithstanding anything contained in any other law for time being enforced , or judgment of any Court--It is, therefore, quite dear’ that under this section duties whether they are levied under Section 18(1) or 18(2) of Act are to be paid as provided under Section 30 notwithstanding any other law or judgment of Court--Imposition of regulatory duty under Section 18(2) of Act, otherwise could not be objected to in view of provisions contained in Section 31-A of Act and same was recoverable on goods imported into Pakistan in accordance with provisions of Section 30 of Act notwithstanding fact that notification issued under Section 19 of Act exempting such goods either wholly or partially from payment of customs duty leviable under Section 18(1) of Act, was holding field. PLJ 2000 SC 109
Exemption--Extent--If on goods imported customs duty was already chargeable at rate of 65%, such goods were exempted under S.R.O. No. 1050(1)/95 dated 29.10.1995 from payment of regulatory duty--Government, however, was left to examine individual cases in light of observation by Supreme Court in judgment. PLJ 2000 SC 109
Date of determination of value and rate of import duty--Under Section 30, Customs Act, 1969, rate of duty for goods cleared for home consumption, is rate applicable on date bill of entry is presented under this section--Therefore, if on ‘date importer had submitted his bill of entry, notification issued by Government under Section 18(2) of Act, had not come into effect, regulatory duty could not be recovered on such goods--However, on facts concerned authorities will determine individual cases in light of observations by Supreme Court. PLJ 2000 SC 109
It is true that Protection of Economic Reforms Act was given overriding effect over all other existing laws including Customs Act and Section 6 thereof, provided that fiscal incentives given to investors by way of Notification No. S.R.O. 1284(1)/90, dated 13.12.1990 could not be withdrawn or altered to disadvantage of investors during period specified therein--However, this provision did not curtail or take away power of Federal Government vested under Section 18(2) of Customs Act--Fact that Government could not withdraw concession allowed by it under S.R.O., dated 13.12.1990 during period specified in notification, did not mean that Government was precluded from exercising power under other laws which allowed discretion to Government to impose additional duties of customs--Provisions of Section 6 of Economic Reforms Act 1992 places no embargo on exercise of delegated powers by Government under Section 18(2) of Customs Act--In respect of goods which were exempted for payment of customs duty specified in 1st Schedule to Act, either wholly or partially under all S.R.Os. except S.R.O. No. 108(I)/95, dated 12.2.1995, imposition of regulatory duty by Government under Section 18(2) of Customs Act, was effective and same could be recovered from importers at time of filing of bill of entry for consumption or on date of ex-bonding of goods from bonded warehouse, if notification imposing regulatory duty .had come into effect on date of presentation of bill of entry or ex-bonding of consignment from bonded warehouse. PLJ 2000 SC 109
Notification--S.R.O. 108(I)/95, dated 12.2.1995 is valid for a period of 5 years from date of its issue--Government while granting exemption from payment exemption form payment of customs duty to industrialists under this notification firstly made no reference to duty of customs prescribed in 1st Schedule to Customs Act, 1969 as was done in other S.R.Os.--Secondly, expression used in this notification is from whole of customs duties”--Therefore, keeping in view tenor of language .of notification and fact that notification was valid for a period of 5 years from date of its issue and fact that language used in exemption notification covered future levy of additional, customs duty as well in respect of goods covered by S.R.O. No. 108(1)/95, dated 12.2.1995, regulatory duty imposed by S.R.O. No. 1050(1)/95, dated 29.10.1995, was not recoverable. PLJ 2000 SC 109
Surcharge and Iqra Surcharge: -- Writ and appeal against in Pakistan High Court and Supreme Court--Dismissal of--Release of consignment on furnishing of guarantee--Writ against in AJ&K--Iqra Surcharge and Surcharge are imposed under laws enforced in Pakistan and demanded by collector Custom Karachi upon consignment imported into Pakistan--Imposition of above duty is held valid by Supreme Court of Pakistan on appeal against judgments of Lahore High Court and petitioner was one of those appellants--Laws inforce in Pakistan apply to all those who import in or export from Pakistan ports, whether state subjects or Nationals of any other country of world--In absence of any special arrangement under law, law of land where cause of action accrues applies, irrespective of fact to which country or nationality importer or exporter belongs. PLJ 1999 AJK 1
S.
18 Provides for levy of customs duty while Section 19 empowers Federal
Government to exempt any goods from whole or any part of customs duty
chargeable thereon--Customs duties are imposed under sub-section (1) while
regulatory duties are imposed under sub-section (2) of Section 18 of Customs
Act--Sub-section (3) charities that regulatory duty shall be in addition to any
duty levied under Section 18(1)--Held: Only interpretation which can be put on
notification is total exemption from whole of customs duties and sales tax and
not only those mentioned in Section 18(1) of Act--Petition dismissed. PLJ 1994 Note 51
1. Imposition of regulatory duty
2. Agreement for exemption from payment of customs duty
3. Levy of service charges
4. Payment of customs duty leviable
5. Date for determination of value and rate of import duty
6. Whether Regulatory Duty falls within definition of Customs Duty
7. Date of determination of value and rate of import duty
8. Exemption--Extent
9. Goods dutiable--Date for determination of value and rate of import duty--Entry for home consumption or warehouse
10. Imposition of fine
11. Imposition of regulatory duty
12. Imposition of Surcharge and Iqra Surcharge on consignment booked for AJK--Challenge to--
13. Pre-shipment inspection--Levy of service charges
14. Protection of fiscal incentives
15. Regulatory duty--Imposition of
16. Regulatory duty -- Demand of
17. Regulatory duty--Imposition & exemption of
18. Non-Repatriable Investment Scheme
19. Surcharge and Iqrar Surcharge
20. Exemption
21. Whether Regulatory Duty falls within definition of Customs Duty
1.
Imposition of regulatory
duty--Notification--S.R.O.
108(I)/95, dated 12.2.1995 is valid for a period of 5 years from date of its
issue--Government while granting exemption from payment exemption form payment
of customs duty to industrialists under this notification firstly made no
reference to duty of customs prescribed in 1st Schedule to Customs Act, 1969 as
was done in other S.R.Os.--Secondly, expression used in this notification is
from whole of customs duties"--Therefore, keeping in view tenor of
language .of notification and fact that notification was valid for a period of
5 years from date of its issue and fact that language used in exemption
notification covered future levy of additional, customs duty as well in respect
of goods covered by S.R.O. No. 108(1)/95, dated 12.2.1995, regulatory duty imposed
by S.R.O. No. 1050(1)/95, dated 29.10.1995, was not recoverable. PLJ 2000 SC
109
2.
Agreement for exemption
from payment of customs duty--Levy of service charge thereafter--Challenge to on basis of
doctrine of promissory estoppel--Promissory estoppel was subject to following
limitations (i) this doctrine cannot be invoked against legislature (ii) this
doctrine cannot be invoked for directing the doing of thing which is against
law PLJ 1998
3.
Levy of service charges--Ultra vires of power of Legislature--Service
charge as levied by virtue of S. 18(b) inserted into Act through Tax Adjustment
Ordinance, charge is not a fee, because it is neither meant for benefit of
payees nor its collection enables Government to carry out expense, for the
benefit of importer--World has shrunk into a global village--With advancement
of information and media technology, determination of prices is an easy task
and quality of goods provided by Customs Act--For the foregoing reasons,
Supreme Court is of the view that imposition of service charge as imposed under
S. 18(b) of the Act towards pre-shipment inspection is ultra vires of powers of
Federal Legislature. PLJ 2000 SC 447
4.
Payment of customs duty
leviable:-
Whether imposition of regulatory duty by Government under S. 18(2), Customs
Act, 1969 on goods/items exempted from payment of customs duty leviable under
S. 18(1) of said Act, was valid and recoverable and whether withdrawal of
exemption from payment of customs duty and sales tax was applicable to cases
where contracts for import of goods were entered into before withdrawal of
exemptions--Leave granted to consider the questions. PLJ 2000 SC 109
5.
Date for determination of
value and rate of import duty--An importer is bound to pay duty within seven days of
presentation of Bill of Entry for clearance from a warehouse, if not comply
such rules then rates applicable would be ones which are extent at time duty -
is actually paid--Payment of duty contemplated in Section 30(b), second proviso
of Customs Act, 1969 means payment of duty in its totality. PLJ 1999 SC 884
6.
Whether Regulatory Duty
falls within definition of Customs Duty-- Expression "Exemption from whole
of customs Duty" includes, "Customs Duty" as defined under S.
18(1) and "Regulatory Duty" covered under S. 18(2) (3) of Customs Act
1969. PLJ 2003 SC 385
7.
Date of determination of value and rate of import duty--Under Section 30, Customs Act, 1969,
rate of duty for goods cleared for home consumption, is rate applicable on date
bill of entry is presented under this section--Therefore, if on 'date importer
had submitted his bill of entry, notification issued by Government under
Section 18(2) of Act, had not come into effect, regulatory duty could not be
recovered on such goods--However, on facts concerned authorities will determine
individual cases in light of observations by Supreme Court. PLJ 2000 SC 109
8.
Exemption--Extent--If on goods imported customs duty was
already chargeable at rate of 65%, such goods were exempted under S.R.O. No.
1050(1)/95 dated 29.10.1995 from payment of regulatory duty--Government,
however, was left to examine individual cases in light of observation by
Supreme Court in judgment. PLJ 2000 SC 109
For payment of custom--Effective date of duty--Exempetion from
customs duty had no nexus with establishment of a Letter of Credit or
finalization of a contract of sale of goods in question, but to date of Bill of
Entry--Goods for which exemption was sought, should have arrived in Pakistan
before date on which said exemption was withdrawn, because it was on date of
Bill of Entry that obligation to pay customs duties was crystallized in terms
of S. 18, Customs Act, 1969--Rights and liabilities of importers attain
fixation on said crucial data. PLJ 2000
9.
Goods dutiable--Date for determination of value and rate
of import duty--Entry for home consumption or warehouse--Chargeability of duty having arisen, any
change in rate of customs duty or imposition of additional duty of customs, is
to be determined with reference to dates of filing of bill entry for home
consumption or taking out goods from bonded warehouses as provided in S. 30,
Customs Act, 1969--Rate of duty applicable to any imported goods under S. 30 of
Act is duty which is applicable on date of filing of bill of entry for home
consumption under S. 79 of Act and in case of goods cleared from bonded
warehouse on date goods are ex-bonded from warehouse. PLJ 2000 SC 109
10.
Imposition of fine--Dismissal of appeal by High
Court--Legality--Perusal of record coupled with findings of Customs Central
Excise and Sales Tax Appellate Tribunal and the High Court clearly showed that
petitioner had mis-declared description of goods and claimed evasion of tax
under S.R.O. No. 602 which fact was evident from reply to show-cause notice
wherein he had not claimed any concession under S.R.O. No. 643, thus, stance
taken by petitioner at appellate stage by moving application for bringing
amendment in memorandum of appeal to the extent that in place of SRO No. 602,
SRO No. 643 be substituted was rightly declined--Only 10 percent of total
consignment having been examined by customs staff, petitioner was rightly
afforded benefit of 90 per cent of goods by Tribunals as well as by the High
Court--Even otherwise, appeal before High Court was not competent in as much
as, Tribunal had not referred any question of law arising out of the order to
High Court for determination--Leave to appeal against judgment of High Court
was thus, refused. 2004 SCMR 545 =PLJ
2004 SC 70
11.
Imposition of regulatory
duty--Date of
determination of value and rate of import duty--Under Section 30, Customs Act,
1969, rate of duty for goods cleared for home consumption, is rate applicable
on date bill of entry is presented under this section--Therefore, if on 'date
importer had submitted his bill of entry, notification issued by Government
under Section 18(2) of Act, had not come into effect, regulatory duty could not
be recovered on such goods--However, on facts concerned authorities will
determine individual cases in light of observations by Supreme Court. In contradiction to customs duty levied
under Section 18(1) of Customs Act, 1969, which is prescribed and
predetermined, regulatory duty is neither prescribed nor pre-determined but is
levied at a rate which may vary according to circumstances--Therefore,
regulatory duty imposed by Government under Section 18(2) of Customs Act though
as species of customs duty, is a duty in addition to duty prescribed under
First Schedule to Act to meet a particular situation, not covered by statutory
duty--Notification issued by Government under Section 19 of Act granting
exemption wholly or partially from payment of customs duty prescribed under
First Schedule to Act, could not therefore, cover customs duty subsequently
levied by Government by way of additional customs duty to meet or cover a
situation arising subsequent to issue of exemption notification--If Government
intended to exempt any future levy of customs duty as well while granting
exemption from existing prescribed customs duty, it could provide so in exemption
notification--As exemption notifications did not exempt goods which were
exempted from statutory customs duty, also from payment of regulatory duty,
exemption did not apply to regulatory duty imposed by Government subsequently
although regulatory duty may be a species of customs duty. PLJ 2000 SC 109 Section 31-A, Customs Act, 1969, provides
that for purposes of Sections 30 and 31 of Act, rate of duty applicable to
goods includes amount of duty imposed under Section 18 of Act, Section 2 of
Finance Ordinance, 1982 and Section 5 of Finance Act, 1985, in addition to
amount of customs duty that may become payable as a consequence of withdrawal
of whole or any part of exemption or concession from duty whether before or
after conclusion of contract or agreement for sale of goods or opening of
letters of credit in respect of contract notwithstanding anything contained in
any other law for time being enforced , or judgment of any Court--It is,
therefore, quite dear' that under this section duties whether they are levied
under Section 18(1) or 18(2) of Act are to be paid as provided under Section 30
notwithstanding any other law or judgment of Court--Imposition of regulatory
duty under Section 18(2) of Act, otherwise could not be objected to in view of
provisions contained in Section 31-A of Act and same was recoverable on goods
imported into Pakistan in accordance with provisions of Section 30 of Act
notwithstanding fact that notification issued under Section 19 of Act exempting
such goods either wholly or partially from payment of customs duty leviable
under Section 18(1) of Act, was holding field. PLJ 2000 SC 109
12.
Imposition of Surcharge and Iqra Surcharge on consignment
booked for AJK--Challenge to--Whether a custom duty can be imposed by authorities at Karachi
on consignment booked for AJK being foreign country--Question of--AJK is a
political and administrative entity within dominion of Pakistan with full
autonomy and uninterrupted powers vested in it through its council, Assembly
and Government except those excluded from its purview under Sec. 31(3)--AJK
does not at all have a nation--State identity under International Law and
Constitutional set-up under which it is governed--Petitioner did never claim
before custom authorities that consignment is in transit for AJK which is a
foreign territory--Held: Contention of petitioner that consignment charged for
by custom authorities being in transit for foreign territory AJK is
misconceived and provisions of Ss. 18 and 129 of Customs Act, 1969, are not
attracted. PLJ 1999 AJK 1 In contradiction to customs duty levied under
Section 18(1) of Customs Act, 1969, which is prescribed and predetermined,
regulatory duty is neither prescribed nor pre-determined but is levied at a
rate which may vary according to circumstances--Therefore, regulatory duty
imposed by Government under Section 18(2) of Customs Act though as species of
customs duty, is a duty in addition to duty prescribed under First Schedule to
Act to meet a particular situation, not covered by statutory duty--Notification
issued by Government under Section 19 of Act granting exemption wholly or
partially from payment of customs duty prescribed under First Schedule to Act,
could not therefore, cover customs duty subsequently levied by Government by
way of additional customs duty to meet or cover a situation arising subsequent
to issue of exemption notification--If Government intended to exempt any future
levy of customs duty as well while granting exemption from existing prescribed
customs duty, it could provide so in exemption notification--As exemption
notifications did not exempt goods which were exempted from statutory customs
duty, also from payment of regulatory duty, exemption did not apply to
regulatory duty imposed by Government subsequently although regulatory duty may
be a species of customs duty. PLJ 2000 SC 109 It is true that Protection
of Economic Reforms Act was given overriding effect over all other existing
laws including Customs Act and Section 6 thereof, provided that fiscal
incentives given to investors by way of Notification No. S.R.O. 1284(1)/90,
dated 13.12.1990 could not be withdrawn or altered to disadvantage of investors
during period specified therein--However, this provision did not curtail or
take away power of Federal Government vested under Section 18(2) of Customs
Act--Fact that Government could not withdraw concession allowed by it under
S.R.O., dated 13.12.1990 during period specified in notification, did not mean
that Government was precluded from exercising power under other laws which
allowed discretion to Government to impose additional duties of
customs--Provisions of Section 6 of Economic Reforms Act 1992 places no embargo
on exercise of delegated powers by Government under Section 18(2) of Customs
Act--In respect of goods which were exempted for payment of customs duty
specified in 1st Schedule to Act, either wholly or partially under all S.R.Os.
except S.R.O. No. 108(I)/95, dated 12.2.1995, imposition of regulatory duty by
Government under Section 18(2) of Customs Act, was effective and same could be
recovered from importers at time of filing of bill of entry for consumption or
on date of ex-bonding of goods from bonded warehouse, if notification imposing
regulatory duty .had come into effect on date of presentation of bill of entry
or ex-bonding of consignment from bonded warehouse. PLJ 2000 SC 109
Petitioner ordered import of plant and
machinery when such imported goods were exempted from customs duty--Earlier
notification exempting such goods from customs duty was, however, modified,
whereunder exemption was withdrawn before imported goods reached
destination--Validity--Respondent claimed that goods in question, being locally
manufactured, import of the same was liable to customs duty--Petitioner's claim
at that he had addressed letter to Ministry of Industries, inquiring whether
goods, he intended to import were locally manufactured or not and that Ministry
of Industries had addressed memorandum to Central Board of Revenue and the
Board of Revenue raised no objection which fact indicated tacit consent of
Board of Revenue--Petitioner on basis of such letter had entered into contract
and established letters of credit--Board of Revenue had itself conceded in its
reply to Ministry of Industries that some parts of machinery were being manufactured
locally while other parts were not being manufactured locally., therefore,
Custom General 'Order issued by Central Board of Revenue had no effect--Fact as
to whether goods were being manufactured locally could only be determined by
Board of Revenue after factual inquiry--Thus, rights which vested in petitioner
on having entered into a firm contract with foreign supplier could not be taken
away by issuing notification or Customs General Order--Respondent's objection,
that Constitutional petition was not maintainable for having been directed
against issuance of show cause notice and no order detrimental to interest of
petitioner having been passed--Such objection could not prevail in that,
Constitutional petition can be maintained against issuance of show-cause
notice--Besides, doctrine of Promissory Estoppel being in issue, Constitutional
petition was maintainable--Show-cause notice issued to petitioner for payment
of Customs duty was declared to be without lawful authority and of no legal
effect. PL. 2000
13.
Pre-shipment inspection--Levy of service charges--Ultra vires of power of
Legislature--Service charge as levied by virtue of S. 18(b) inserted into Act
through Tax Adjustment Ordinance, charge is not a fee, because it is neither
meant for benefit of payees nor its collection enables Government to carry out
expense, for the benefit of importer--World has shrunk into a global
village--With advancement of information and media technology, determination of
prices is an easy task and quality of goods provided by Customs Act--For the
foregoing reasons, Supreme Court is of the view that imposition of service
charge as imposed under S. 18(b) of the Act towards pre-shipment inspection is
ultra vires of powers of Federal Legislature. PLJ 2000 SC 447
14.
Protection of fiscal
incentives--Section
6, Protection of Economic Reforms Act, 1992 is to be read with Schedule to said
Act XII of 1992 which mentions Notification No. S.R.O. 1284(1)/90, dated
13.12.1990 issued under Section 19 of Customs Act--It is true that Protection
of Economic Reforms Act was given overriding effect over all other existing
laws including Customs Act and Section 6 thereof, provided that fiscal
incentives given to investors by way of Notification No. S.R.O. 1284(1)/90,
dated 13.12.1990 could not be withdrawn or altered to disadvantage of investors
during period specified therein--However, this provision did not curtail or
take away power of Federal Government vested under Section 18(2) of Customs
Act--Fact that Government could not withdraw concession allowed by it under
S.R.O., dated 13.12.1990 during period specified in notification, did not mean
that Government was precluded from exercising power under other laws which
allowed discretion to Government to impose additional duties of
customs--Provisions of Section 6 of Economic Reforms Act 1992 places no embargo
on exercise of delegated powers by Government under Section 18(2) of Customs
Act--In respect of goods which were exempted for payment of customs duty
specified in 1st Schedule to Act, either wholly or partially under all S.R.Os.
except S.R.O. No. 108(I)/95, dated 12.2.1995, imposition of regulatory duty by
Government under Section 18(2) of Customs Act, was effective and same could be
recovered from importers at time of filing of bill of entry for consumption or
on date of ex-bonding of goods from bonded warehouse, if notification imposing
regulatory duty .had come into effect on date of presentation of bill of entry
or ex-bonding of consignment from bonded warehouse. PLJ 2000 SC 109
15.
Regulatory
duty--Imposition of--Under
the Scheme of S. 18(2) legislation has delegated its power to Federal
Government to levy Regulatory duty, subject to such conditions limitation or
restrictions, as it may deem fit to impose on all or any of goods specified in
First Schedule--It. is discretion of Federal Government to issue any
notification, for purpose of levying tax being delegatees of law givers--Levy
of Regulatory duty not only regulates price structure of items concerned, but
it also generates additional funds for public purposes--To put constraint upon
exercise of power contained in S. 18(2) of nature sought to be pressed into
service by petitioner will not be in the interest of public--Petition
dismissed. PLJ 1997
16.
Regulatory duty -- Demand
of -- Whether
exemption notified under Section 19 of Act in respect of Customs duty, will
also apply to Regulatory Duty imposed under Section 18(2) -- Question of
--Government has wide powers to grant exemption from payment of customs duties
under Section 19(1) of Act, but it can only be granted in respect of Customs
duties chargeable at relevant time -- Held: Notification issued under Section
19(1) of Customs Act, could not be extended to other duties levied after the
issue of such notification -- Petition dismissed. PLJ 1993
17.
Regulatory
duty--Imposition & exemption of--Regulatory duty being transitory in nature is always
imposed subject o limitation contained in Section 18(2)(3)(4) of the Act and
existence of conditions essential for such levy, and Government can continue
its imposition through a fresh notification after expiry of earlier
notification, if such conditions still exist--In absence of specific mention of
regulatory duty in an exemption notification issued under Section 19 of the
Act, the customs duty would not include regulatory duty leviable under Section
18(2)--Exemption from regulatory duty, cannot be claimed in general under
notification giving such exemption beyond financial year during which it is
enforced. PLJ 2001 Lahore 1 S.
18 Provides for levy of customs duty while Section 19 empowers Federal
Government to exempt any goods from whole or any part of customs duty
chargeable thereon--Customs duties are imposed under sub-section (1) while
regulatory duties are imposed under sub-section (2) of Section 18 of Customs
Act--Sub-section (3) charities that regulatory duty shall be in addition to any
duty levied under Section 18(1)--Held: Only interpretation which can be put on
notification is total exemption from whole of customs duties and sales tax and
not only those mentioned in Section 18(1) of Act--Petition dismissed. PLJ
1994 Note 51 If on goods imported customs duty was already chargeable at
rate of 65%, such goods were exempted under S.R.O. No. 1050(1)/95 dated 29.10.1995
from payment of regulatory duty--Government, however, was left to examine
individual cases in light of observation by Supreme Court in judgment. PLJ
2000 SC 109
18.
Non-Repatriable Investment
Scheme:- Such
scheme known as "Non-Repatriable Investment Scheme' enabled Pakistani's
living abroad to import new as well as second hand machinery from their own
resources of foreign exchange--Goods imported by petitioner were converted by
Table III of Finance Act 1999 which provided Zero per cent duty on those goods--On
arrival of machinery in Pakistan, petitioner filed Bill of Entry on 7.3.2000
claiming exemption from payment of duties under table III of Finance Act, 1999,
however, Government on the very date viz. 7.3.2000 had issued notification
whereby table III was amended and entries relating to machinery imported by
petitioner were omitted, thus, custom duties and other taxes became payable on
imported goods--Validity--Petitioner's contention that duty of which exemption
was claimed having been levied by Finance Act, 1999 was not a duty of Customs
under S. 18 of Customs Act, 1969 and as such S. 31-A, thereof was not
applicable was devoid of merit--Provision of S. 18 of Customs Act, 1969 would
show that the Act applies not only to duties levied under the Act but also to
duties which have been levied by any other law for the time being in force
which in present case would be Finance Act, 1999--Provision of S. 31-A Customs
Act, 1969 applies not with standing anything contained in any other law for the
time being in force and provides for payment of duty notwithstanding subsequent
withdrawal of any Notification granting exemption--S. 31-A of Customs Act 1969,
destroys vested right which had accrued to a person on account of his entry
into a contract or opening letter of credit--Goods of petitioner were although,
no liable to pay customs duty when he entered into contract but exemption
having been withdrawn before goods could be cleared, petitioner could not avail
of the same. PLJ 2000 Lahore 2033
19.
Surcharge and Iqra Surcharge: -- Writ and appeal against in Pakistan High
Court and Supreme Court--Dismissal of--Release of consignment on furnishing of
guarantee--Writ against in AJ&K--Iqra Surcharge and Surcharge are imposed
under laws enforced in Pakistan and demanded by collector Custom Karachi upon
consignment imported into Pakistan--Imposition of above duty is held valid by
Supreme Court of Pakistan on appeal against judgments of Lahore High Court and
petitioner was one of those appellants--Laws inforce in Pakistan apply to all
those who import in or export from Pakistan ports, whether state subjects or
Nationals of any other country of world--In absence of any special arrangement
under law, law of land where cause of action accrues applies, irrespective of
fact to which country or nationality importer or exporter belongs. PLJ 1999
AJK 1
20.
Exemption:- Under First Sched to Customs Act, 1969 has
nexus only with duty levied under S. 18(1) of Act, therefore, on language of
exemption notification it was not possible to conclude that exemption granted
under notification also applied to customs duty levied in addition to statutory
duty under S. 18(2) of Act or under other laws for time being in force. PLJ
2000 SC 109
Whether imposition of regulatory duty by Government under S.
18(2), Customs Act, 1969 on goods/items exempted from payment of customs duty
leviable under S. 18(1) of said Act, was valid and recoverable and whether
withdrawal of exemption from payment of customs duty and sales tax was
applicable to cases where contracts for import of goods were entered into
before withdrawal of exemptions--Leave granted to consider the questions. PLJ
2000 SC 109
21. Whether Regulatory Duty falls within definition of Customs Duty--Question of--Expression "Exemption from whole of customs Duty" includes, "Customs Duty" as defined under S. 18(1) and "Regulatory Duty" covered under S. 18(2) (3) of Customs Act 1969. PLJ 2003 SC 385
18.A Special customs duty on imported goods.- The Federal Government may, by notification in the official Gazette, levy a special customs duty on the importation of such of the goods specified in the First Schedule as are of the same kind as goods produced or manufactured in Pakistan, at a rate not exceeding the rate of duty of excise leviable under the Federal Excise Act, 2005, on the goods produced or manufactured in Pakistan:
Provided that the exemption of any goods from the whole or any part of the duty of excise for the time being in force shall not prevent the Federal Government from levying a special customs duty on the importation of goods of the same kind:
Provided further that, for the purposes of the Sales Tax Act 1990 (VII of 1990), the special customs duty shall not constitute a part of the value of supply.
18B. Omitted.
18C. Rates of duty and taxes and determination of origin under trade agreements.- (1) Whereunder a trade agreement between the Government of Pakistan and the Government of a foreign country or territory, duty at a rate lower than that specified in the First Schedule is to be charged on articles which are the produce or manufacture of such foreign country or territory, the Federal Government may, by notification in the officiall Gazette, make rules for determining if any article is the produce or manufacture of such foreign country or territory and for requiring the owner to make a claim at the time of importation, supported by such evidence as may be prescribed in the said rules, for assessment at the appropriate lower rate under such agreement.
(2) Where in respect of any article, a preferential rate of duty is specified in the First Schedule, or is admissible by virtue of a notification under sub-section (1), the duty to be levied and collected shall be at the standard rate unless the owneer of the article claims at the time of importation that it is chargeable with a preferential rate of duty, being the produce or manufacture of such preferential or free trade area, as is notified under sub-section (3) and the article is determined, in accordance with the rules made under sub-section (1) to be such produce or manufacture.
(3) For the purposes of this section and the First Schedule, “preferential area or free trade area” means any country or territory which the Federal Government may, by notification in the official Gazette, declare to be such area.
(4) Notwithstanding anything contained in sub-sections (1) and (2), where the Federal Governemnt is satisfied that, in the interests of trade including promotion of exports, it is necessary to take immediate action for discontinuing the preferential rate or increasing the preferenetial rate to a rate not exceeding the
standard rate, or decreasing the preferential rate, in respect of an article specified in the First Schedule, the Federal Government may, by notification in the official Gazette, direct discontinuation of, or increase or decrease, as the case may be, the preferential rate.
19. General power to exempt from customs-duties.- (1) The Federal Government, subject to such conditions, limitations or restrictions, if any, as it thinks
fit to impose, may, by notification in the official Gazette, exempt any goods imported into, or exported from, Pakistan or into or from any specified port or station or area therein, from the whole or any part of the customs-duties chargeable thereon and may remit fine, penalty, charge or any other amount recoverable under this Act.
(2) A notification issued under sub-section (1) shall be effective from the day specified therein, notwithstanding the fact that the issue of the official Gazette in which such notification appears is published at any time after that day.
(3) Notwithstanding anything contained in any other law for the time being in force, including but not limited to the Protection of Economic Reforms, 1992 (XII of 1992), and notwithstanding any decision or judgement of any forum, authority or court, no person shall, in the absence of a notification by the Federal Government published in the official Gazette expressly granting and affirming exemption from customs duty, be entitled to or have any right to any such exemption from or refund of customs duty on the basis of the doctrine of promissory estoppel or on account of any correspondence or admission or promise or commitment or concessionary order made or understanding given whether in writing or otherwise, by any government department or authority.
Court Decision
Power of Government to levy and exempt duty--Federal
Government has got power to levy customs duty as also power to exempt any goods
so imported from levy of duty subject to conditions specified
therein--Exemption was granted on goods in question, subject to condition that
the same were to be imported during period commencing Ist. December 1990 and
ending on 30th June 1995--Goods in question, which were subject matter of
constitutional petition were admittedly not imported during specified
period—Admitted position was that letter of credit were issued in November 1995
and Bill ‘of lading was dated 29th August 1996--Petitioner, thus, could not
claim exemption on basis of specified SRO dated 14th May 1992. PLJ 2000
Additional Customs duties--Levy of--Exemption from :--- Contention
that all additional duties having been incorporated in Section 31-A of Customs
Act, resort to Section 2 of Finance Ordinance, 1982 and Section 5 of Finance
Act, 1985 for purpose of granting exemption, need not be made--Section 31-A is
not charging section--Additional customs duty and Iqra surcharge are to be
calculated in accordance with provisions of Section 2 of Ordinance 1982 and
Section 5 of Act, 1985--Held: Any exemption granted under Section 19 of Customs
Act, will not be attracted while charging duty under Section 2 of Finance
Ordinance 1982 and Section 5 of Finance Act, 1985--Held further: Petitioner is
not entitled to relief claimed by it. 1991 C L C
390 = PLJ 1991
Exemption from payment of statutory customs duty--Entitlement--Leave to appeal was granted to consider whether revised contract for import of textile machinery under PAYE scheme having been entered into and sanctioned/approved by the concerned authorities before the issuance of Notification No. SRO 500(1)/84 dated 4.6.1984, the import of goods by npetitioner was covered under the proviso S.R.O. No. 700(1)/80 dated 26.6.1980. PLJ 2001 SC 130
Mis-declaration of imported goods so as to avoid customs duty and sales tax--Imposition of fine--Dismissal of appeal by High Court--Legality--Perusal of record coupled with findings of Customs Central Excise and Sales Tax Appellate Tribunal and the High Court clearly showed that petitioner had mis-declared description of goods and claimed evasion of tax under S.R.O. No. 602 which fact was evident from reply to show-cause notice wherein he had not claimed any concession under S.R.O. No. 643, thus, stance taken by petitioner at appellate stage by moving application for bringing amendment in memorandum of appeal to the extent that in place of SRO No. 602, SRO No. 643 be substituted was rightly declined--Only 10 percent of total consignment having been examined by customs staff, petitioner was rightly afforded benefit of 90 per cent of goods by Tribunals as well as by the High Court--Even otherwise, appeal before High Court was not competent in as much as, Tribunal had not referred any question of law arising out of the order to High Court for determination--Leave to appeal against judgment of High Court was thus, refused. 2004 SCMR 545 =PLJ 2004 SC 70
Import of machinery and spare parts--Exemption
from payment of Customs Duties, Sales Tax and other charges under S.R.O. dated
12.6.1998--Conditions for entitlement to exemption were absence of local manufacture
and purpose for which machinery and spares were to be imported subject to
performance of conditions laid down in S.R.O. by importers--Where machinery or
spares have been imported for the purpose mentioned in S.R.O. and were not
locally manufactured, there would be no hurdle in way of importers to enjoy
exemption granted under said SRO--Respondents were not entitled to curtail or
to enhance operation of SRO by means of executive order--Such process can only
be undertaken by amendment of SRO in prescribed manner which has not been done
in present case. PLJ 2003
Whether Office Order issued on the basis of ECC decision of cabinet Division could not be considered a notification issued in terms of provisions of Customs Act, therefore exemptions claimed on basis thereof, could not be given effect to by amending judgment already pronounced by the Court in main writ petition and if respondents wanted to enforce decision of ECC of Cabinet Division, which was based on separate cause of action, they should have filed separate petition as the order passed by Court disposing of main writ petition could not amended-so as to give effect to the decision in question--Leave to appeal granted to consider was the contentions-- PLJ 2003 SC 385
Entitlement--Appellants entered into contract with foreign machinery supplier on 6th September 1983 but he took no effective steps till 14.6.1984 when earlier SRO 700(1)/80 dated 26.6.1980 was superseded by SRO 500(1)/84, therefore, no concrete steps were taken to implement the contract in question--Government thus, could not be compelled to extend benefit of SRO 700(1)/80 to appellant–Governemnt could not be bound down for all the times to come not to modify, withdraw or promulgate SRO’s imposing tax only for the reason that one of the party had entered into contract for the supply of foreign machinery in those cases where neither Federal Government was a party nor in superseded SRO it was mentioned that the same would remain operative till particular period--Contract for supply of machinery having been executed between private parties, same would not bind the government not to supersede the SRO because of the fact that Government was not a party to contract--Appellant however, can get benefit of non-payment of additional duty of ad-veloram if it can show before custom authorities to whom case had been remanded by High Court that machinery so imported by appellant was not being manufactured in Pakistan at the relevant time. PLJ 2001 SC 130
Petitioners
owned industrial undertaking located in Hub Industrial Trading Estate in
Province of Baluchistan and had imported certain machinery for their plant
during 1992-93--Machinery of kind imported, which was admittedly not being
manufactured in Pakistan, was at one time altogether exempted from custom duty
through notification issued under Section 19 of Customs Act pursuant to a
policy decision of Government in providing incentives for industrialisation in
rural areas--However, when petitioners imported such machinery it was subjected
to a levy of custom duty at rate of Rs. 10% advalorem in terms of SRO No.
484(1)/92 dated 14.5.1992--Petitioners have called in question aforesaid levy
of custom duty through these petitions--Learned counsel for petitioners has
pressed before Court a two fold contention--That impugned notification is ultra
vires, Section 6 of Protection of Economic Reforms Act, 1992, in so far as it
is repugnant to SRO No. 1284/(1)/90, dated 13.12.1990 and is therefore, of no
legal effect;--In support of his first contention, learned counsel for
petitioner drew Court’s attention to provisions of Protection of Economic
Reforms Ordinance, 1991, promulgated by President on 9th December, 1991 i.e.
when Notification No. 1284(1)/90 dated 13.12.1990 had not been
superseded--Section 6 of Ordinance reads as under--fiscal incentives for
investment provided by Government through statutory orders listed in Schedule
or otherwise notified shall continue in force for terms specified therein and
shall not be altered to disadvantage of investors--Learned Counsel argued that
under aforesaid statute, financial incentives granted to investors in terms of
notification acquired statutory protection and Section 3 of Act provided that
it would override all other laws including Customs Act--Therefore such
incentives or privileges could not be withdrawn through a notification issued
under Section 19 of Customs Act till 30th June, 1995--As such impugned
notification purporting to levy 10% custom duty was ultra vires powers of
Federal Government available under Customs Act--In support of his contention
Learned Counsel relied upon unreported judgment of Honourable Supreme Court in
Gatron Industries Limited vs. Government of Pakistan and others (Civil Appeal
No. 223/94), where reversing judgment of High Court of Baluchistan Honourable
Supreme Court has held that exemption under Notification No. SRO No. 1284(1)/90
dated 13.12.1990 having been granted statutory protection, same could not be
destroyed, through a subsequent notification under Customs Act--According to
learned counsel this amendment being a beneficial provision is required to be
given retrospective effect--In this context he referred to a recent judgment of
same Bench in case of Polyron Limited v. Government of Pakistan (C.P. No.
D-2838 of 1992), wherein, respectfully following law declared by Honourable
Supreme Court in Army Welfare Sugar Mill v. Federation of Pakistan (1992
S.C.M.R. 1652), Court had indeed taken above view--Nevertheless, keeping in
view legal position authoritatively settled by Honourable Supreme Court, High
Court is of the opinion that same has to be held void and inoperative to extent
to which it is repugnant to statutory protection available to petitioners under
Section 6 of Protection of Economic Reforms Act--These petitions therefore,
allowed--Bank guarantees furnished shall stand discharged and amount deposited
by petitioners shall be refunded to them. PLJ
2001
Regulatory duty--Imposition & exemption of--Regulatory
duty being transitory in nature is always imposed subject o limitation
contained in Section 18(2)(3)(4) of the Act and existence of conditions
essential for such levy, and Government can continue its imposition through a
fresh notification after expiry of earlier notification, if such conditions
still exist--In absence of specific mention of regulatory duty in an exemption
notification issued under Section 19 of the Act, the customs duty would not
include regulatory duty leviable under Section 18(2)--Exemption from regulatory
duty, cannot be claimed in general under notification giving such exemption
beyond financial year during which it is enforced. PLJ
2001
Petitioner
ordered import of plant and machinery when such imported goods were exempted
from customs duty--Earlier notification exempting such goods from customs duty
was, however, modified, whereunder exemption was withdrawn before imported
goods reached destination--Validity--Respondent claimed that goods in question,
being locally manufactured, import of the same was liable to customs duty--Petitioner’s
claim at that he had addressed letter to Ministry of Industries, inquiring
whether goods, he intended to import were locally manufactured or not and that
Ministry of Industries had addressed memorandum to Central Board of Revenue and
the Board of Revenue raised no objection which fact indicated tacit consent of
Board of Revenue--Petitioner on basis of such letter had entered into contract
and established letters of credit--Board of Revenue had itself conceded in its
reply to Ministry of Industries that some parts of machinery were being
manufactured locally while other parts were not being manufactured locally.,
therefore, Custom General ‘Order issued by Central Board of Revenue had no
effect--Fact as to whether goods were being manufactured locally could only be
determined by Board of Revenue after factual inquiry--Thus, rights which vested
in petitioner on having entered into a firm contract with foreign supplier
could not be taken away by issuing notification or Customs General Order--Respondent’s
objection, that Constitutional petition was not maintainable for having been
directed against issuance of show cause notice and no order detrimental to
interest of petitioner having been passed--Such objection could not prevail in
that, Constitutional petition can be maintained against issuance of show-cause
notice--Besides, doctrine of Promissory Estoppel being in issue, Constitutional
petition was maintainable--Show-cause notice issued to petitioner for payment
of Customs duty was declared to be without lawful authority and of no legal
effect. PL. 2000
Exemption from customs duty and sales tax on basis of
principle of legitimate expectations--Entitlement--Petitioner’s
claim that on basis of principle of legitimate expectation, exemption once
granted could not be rescinded in as much as, contract for import of machinery
had been executed during currency of exemption period--Such claim of petitioner
was not tenable for the reason that notification on basis of which petitioner
was claiming exemption itself stipulated that such concession would be
available only to those goods which were imported during period specified
therein, and that S. 31-A of Customs Act clearly lays down that amount of duty
would be payable irrespective of the fact whether withdrawal had taken place
before or after the creation of contract for sale of goods or opening of letter
of credit--Levy and charge ability of duty, however, has no nexus with the day
on which goods were to be imported--Petitioner was, thus, not entitled to
exemption from customs duty. PLJ 2000
Levy of sales tax on steel strips used by respondent--Respondent’s entitlement to claim exemption from sales tax on basis of S.R.O’s dated 14.6.1995 and 9.5.1994--Respondent admittedly use steel strips which being raw material is locally manufactured by Pakistan Steel Mills Ltd. was supplied to respondent--Perusal of SRO dated 9.5.1994 would indicate that no exemption from payment of sales tax was available on import of steel strips if the same had not been locally manufactured, in asmuchas, exemption was available only in respect of raw-material, which was locally manufactured--Idea behind issuance of notification SRO dated 14.6.1995 was to bring locally manufactured raw material at par with regard to exemption from sales tax with that covered by notification SRO dated 9.5.1994--Comparison of both such notifications if read together, would leave no room to doubt that locally manufactured raw material was exempt from payment of sales tax and expression of term “at import stage” in SRO dated 14.6.1995 would not alter nature and character of exemption--Appellants, thus, cannot withdraw exemption from sales tax to respondent on locally manufactured steel strips to manufacture steel pipes--High Court’s judgment being on right lines, appeal against the same was dismissed in circumstances. PLJ 2000 SC 518
Imposition of regulatory duty--In contradiction to customs duty levied under Section 18(1) of Customs Act, 1969, which is prescribed and predetermined, regulatory duty is neither prescribed nor pre-determined but is levied at a rate which may vary according to circumstances--Therefore, regulatory duty imposed by Government under Section 18(2) of Customs Act though as species of customs duty, is a duty in addition to duty prescribed under First Schedule to Act to meet a particular situation, not covered by statutory duty--Notification issued by Government under Section 19 of Act granting exemption wholly or partially from payment of customs duty prescribed under First Schedule to Act, could not therefore, cover customs duty subsequently levied by Government by way of additional customs duty to meet or cover a situation arising subsequent to issue of exemption notification--If Government intended to exempt any future levy of customs duty as well while granting exemption from existing prescribed customs duty, it could provide so in exemption notification--As exemption notifications did not exempt goods which were exempted from statutory customs duty, also from payment of regulatory duty, exemption did not apply to regulatory duty imposed by Government subsequently although regulatory duty may be a species of customs duty. PLJ 2000 SC 109
Concession to rate of custom duty under S. R.O. issued by
Government of
Appeal:-- Single Judge in their respective
orders had seen to it that exemption is to be enjoyed by importers within four
corners of Notification in question, and upon fulfillment of all conditions
thereof and not otherwise--Appeal, against such decision, were without any
force. PLJ 2003
1. Additional Customs duties
2. Appeal
3. Concession to rate of custom duty under S. R.O. issued by Government of Pakistan withdrew through Customs General Order
4. Constitutional Petition
5. Exemption from payment of statutory customs duty
6. Entitlement
7. Exemption from customs duty and sales tax on basis of principle of legitimate expectations--Entitlement
8. Exemption from payment of statutory customs duty--Entitlement
9. Import of machinery and spare parts
10. Imposition of regulatory duty--In contradiction to customs duty levied under Section 18(1) of Customs Act, 1969
11. Exemption from payment of Customs Duties
12. Levy of sales tax on steel strips used by respondent
13. Mis-declaration of imported goods so as to avoid customs duty and sales tax--Imposition of fine--
14. Power of Government to levy and exempt duty
15. Protection of Economic Reforms Ordinance, 1991
16. Regulatory duty
17. Regulatory duty--Imposition & exemption of
18. Whether Office Order issued on the basis of ECC
1.
Additional Customs duties :--- Contention that all additional duties
having been incorporated in Section 31-A of Customs Act, resort to Section 2 of
Finance Ordinance, 1982 and Section 5 of Finance Act, 1985 for purpose of
granting exemption, need not be made--Section 31-A is not charging
section--Additional customs duty and Iqra surcharge are to be calculated in
accordance with provisions of Section 2 of Ordinance 1982 and Section 5 of Act,
1985--Held: Any exemption granted under Section 19 of Customs Act, will not be
attracted while charging duty under Section 2 of Finance Ordinance 1982 and
Section 5 of Finance Act, 1985--Held further: Petitioner is not entitled to
relief claimed by it. 1991 C L C 390 = PLJ 1991
2.
Appeal:-- Single Judge in their respective orders had seen to it that
exemption is to be enjoyed by importers within four corners of Notification in
question, and upon fulfillment of all conditions thereof and not
otherwise--Appeal, against such decision, were without any force. PLJ 2003
3.
Concession to rate of custom duty under S. R.O. issued by
Government of
4.
Constitutional Petition--Merely because petitioner was resident
of or had its registered office within territorial jurisdiction of High Court
at 'L' was not enough to give territorial jurisdiction to Court when goods in
question had arrived within territorial jurisdiction of High Court at 'K' bills
of exchange were filed at `K' and duties were assessed under orders of
Competent Authority at 'K'--In addition officials of Customs who had assessed
and levied Customs duty were not impleaded in Constitutional petition--Cause of
action had arisen to. petitioner where non-impleaded functionaries had passed
their order impugned in petition--Mere fact that apex Authority viz. Central
Board of Revenue had its office within territorial jurisdiction of Court would
not give jurisdiction to High Court at 'L'--High Court at 'L' had no
jurisdiction to issue direction to Collector of Customs at 'K' which was not
within its jurisdiction–Constitutional petition was thus, not maintainable for
lack of territorial jurisdiction and for non-impleading of necessary part.
PLJ 1997
5.
Exemption from payment of
statutory customs duty--Entitlement--Leave to appeal was granted to consider whether
revised contract for import of textile machinery under PAYE scheme having been
entered into and sanctioned/approved by the concerned authorities before the
issuance of Notification No. SRO 500(1)/84 dated 4.6.1984, the import of goods
by petitioner was covered under the proviso S.R.O. No. 700(1)/80 dated 26.6.1980. PLJ 2001 SC 130
6.
Entitlement--Appellants entered into contract with foreign machinery
supplier on 6th September 1983 but he took no effective steps till 14.6.1984
when earlier SRO 700(1)/80 dated 26.6.1980 was superseded by SRO 500(1)/84,
therefore, no concrete steps were taken to implement the contract in
question--Government thus, could not be compelled to extend benefit of SRO
700(1)/80 to appellant–Government could not be bound down for all the times to
come not to modify, withdraw or promulgate SRO's imposing tax only for the
reason that one of the party had entered into contract for the supply of
foreign machinery in those cases where neither Federal Government was a party
nor in superseded SRO it was mentioned that the same would remain operative
till particular period--Contract for supply of machinery having been executed
between private parties, same would not bind the government not to supersede
the SRO because of the fact that Government was not a party to
contract--Appellant however, can get benefit of non-payment of additional duty
of ad-veloram if it can show before custom authorities to whom case had been
remanded by High Court that machinery so imported by appellant was not being
manufactured in Pakistan at the relevant time. PLJ 2001 SC 130
7.
Exemption from customs duty and sales tax on basis of principle
of legitimate expectations--Entitlement--Petitioner's claim that on basis of
principle of legitimate expectation, exemption once granted could not be
rescinded in as much as, contract for import of machinery had been executed
during currency of exemption period--Such claim of petitioner was not tenable
for the reason that notification on basis of which petitioner was claiming
exemption itself stipulated that such concession would be available only to
those goods which were imported during period specified therein, and that S.
31-A of Customs Act clearly lays down that amount of duty would be payable
irrespective of the fact whether withdrawal had taken place before or after the
creation of contract for sale of goods or opening of letter of credit--Levy and
charge ability of duty, however, has no nexus with the day on which goods were
to be imported--Petitioner was, thus, not entitled to exemption from customs
duty. PLJ 2000
8.
Exemption from payment of statutory customs
duty--Entitlement--Leave
to appeal was granted to consider whether revised contract for import of
textile machinery under PAYE scheme having been entered into and sanctioned/approved
by the concerned authorities before the issuance of Notification No. SRO
500(1)/84 dated 4.6.1984, the import of goods by petitioner was covered under
the proviso S.R.O. No. 700(1)/80 dated 26.6.1980. PLJ 2001 SC 130
9.
Import of machinery and spare parts--Exemption from payment of Customs
Duties, Sales Tax and other charges under S.R.O. dated 12.6.1998--Conditions
for entitlement to exemption were absence of local manufacture and purpose for
which machinery and spares were to be imported subject to performance of
conditions laid down in S.R.O. by importers--Where machinery or spares have
been imported for the purpose mentioned in S.R.O. and were not locally
manufactured, there would be no hurdle in way of importers to enjoy exemption
granted under said SRO--Respondents were not entitled to curtail or to enhance
operation of SRO by means of executive order--Such process can only be
undertaken by amendment of SRO in prescribed manner which has not been done in
present case. PLJ 2003
10.
Imposition of regulatory duty--In contradiction to customs duty
levied under Section 18(1) of Customs Act, 1969, which is prescribed and predetermined,
regulatory duty is neither prescribed nor pre-determined but is levied at a
rate which may vary according to circumstances--Therefore, regulatory duty
imposed by Government under Section 18(2) of Customs Act though as species of
customs duty, is a duty in addition to duty prescribed under First Schedule to
Act to meet a particular situation, not covered by statutory duty--Notification
issued by Government under Section 19 of Act granting exemption wholly or
partially from payment of customs duty prescribed under First Schedule to Act,
could not therefore, cover customs duty subsequently levied by Government by
way of additional customs duty to meet or cover a situation arising subsequent
to issue of exemption notification--If Government intended to exempt any future
levy of customs duty as well while granting exemption from existing prescribed
customs duty, it could provide so in exemption notification--As exemption
notifications did not exempt goods which were exempted from statutory customs
duty, also from payment of regulatory duty, exemption did not apply to
regulatory duty imposed by Government subsequently although regulatory duty may
be a species of customs duty. PLJ 2000 SC 109
11.
Exemption from payment of
Customs Duties,
Sales Tax and other charges under S.R.O. dated 12.6.1998--Conditions for
entitlement to exemption were absence of local manufacture and purpose for
which machinery and spares were to be imported subject to performance of
conditions laid down in S.R.O. by importers--Where machinery or spares have
been imported for the purpose mentioned in S.R.O. and were not locally
manufactured, there would be no hurdle in way of importers to enjoy exemption
granted under said SRO--Respondents were not entitled to curtail or to enhance
operation of SRO by means of executive order--Such process can only be undertaken
by amendment of SRO in prescribed manner which has not been done in present
case. PLJ 2003
12.
Levy of sales tax on steel strips used by respondent--Respondent's entitlement to claim
exemption from sales tax on basis of S.R.O's dated 14.6.1995 and
9.5.1994--Respondent admittedly use steel strips which being raw material is
locally manufactured by Pakistan Steel Mills Ltd. was supplied to
respondent--Perusal of SRO dated 9.5.1994 would indicate that no exemption from
payment of sales tax was available on import of steel strips if the same had
not been locally manufactured, in smooches, exemption was available only in
respect of raw-material, which was locally manufactured--Idea behind issuance
of notification SRO dated 14.6.1995 was to bring locally manufactured raw
material at par with regard to exemption from sales tax with that covered by
notification SRO dated 9.5.1994--Comparison of both such notifications if read
together, would leave no room to doubt that locally manufactured raw material
was exempt from payment of sales tax and expression of term "at import
stage" in SRO dated 14.6.1995 would not alter nature and character of
exemption--Appellants, thus, cannot withdraw exemption from sales tax to
respondent on locally manufactured steel strips to manufacture steel
pipes--High Court's judgment being on right lines, appeal against the same was
dismissed in circumstances. PLJ 2000 SC 518
13.
Mis-declaration of imported goods so as to avoid customs
duty and sales tax--Imposition of fine--Dismissal of appeal by High Court--Legality--Perusal of
record coupled with findings of Customs Central Excise and Sales Tax Appellate
Tribunal and the High Court clearly showed that petitioner had mis-declared
description of goods and claimed evasion of tax under S.R.O. No. 602 which fact
was evident from reply to show-cause notice wherein he had not claimed any
concession under S.R.O. No. 643, thus, stance taken by petitioner at appellate
stage by moving application for bringing amendment in memorandum of appeal to
the extent that in place of SRO No. 602, SRO No. 643 be substituted was rightly
declined--Only 10 percent of total consignment having been examined by customs
staff, petitioner was rightly afforded benefit of 90 per cent of goods by
Tribunals as well as by the High Court--Even otherwise, appeal before High
Court was not competent in as much as, Tribunal had not referred any question
of law arising out of the order to High Court for determination--Leave to
appeal against judgment of High Court was thus, refused. 2004 SCMR 545 =PLJ 2004 SC 70
Petitioner ordered import of plant and
machinery when such imported goods were exempted from customs duty--Earlier
notification exempting such goods from customs duty was, however, modified,
whereunder exemption was withdrawn before imported goods reached
destination--Validity--Respondent claimed that goods in question, being locally
manufactured, import of the same was liable to customs duty--Petitioner's claim
at that he had addressed letter to Ministry of Industries, inquiring whether
goods, he intended to import were locally manufactured or not and that Ministry
of Industries had addressed memorandum to Central Board of Revenue and the
Board of Revenue raised no objection which fact indicated tacit consent of Board
of Revenue--Petitioner on basis of such letter had entered into contract and
established letters of credit--Board of Revenue had itself conceded in its
reply to Ministry of Industries that some parts of machinery were being
manufactured locally while other parts were not being manufactured locally.,
therefore, Custom General 'Order issued by Central Board of Revenue had no
effect--Fact as to whether goods were being manufactured locally could only be
determined by Board of Revenue after factual inquiry--Thus, rights which vested
in petitioner on having entered into a firm contract with foreign supplier
could not be taken away by issuing notification or Customs General
Order--Respondent's objection, that Constitutional petition was not
maintainable for having been directed against issuance of show cause notice and
no order detrimental to interest of petitioner having been passed--Such
objection could not prevail in that, Constitutional petition can be maintained
against issuance of show-cause notice--Besides, doctrine of Promissory Estoppel
being in issue, Constitutional petition was maintainable--Show-cause notice
issued to petitioner for payment of Customs duty was declared to be without
lawful authority and of no legal effect. PL. 2000
Petitioners owned industrial undertaking
located in Hub Industrial Trading Estate in Province of Baluchistan and had
imported certain machinery for their plant during 1992-93--Machinery of kind
imported, which was admittedly not being manufactured in Pakistan, was at one
time altogether exempted from custom duty through notification issued under
Section 19 of Customs Act pursuant to a policy decision of Government in
providing incentives for industrialization in rural areas--However, when
petitioners imported such machinery it was subjected to a levy of custom duty
at rate of Rs. 10% advalorem in terms of SRO No. 484(1)/92 dated
14.5.1992--Petitioners have called in question aforesaid levy of custom duty
through these petitions--Learned counsel for petitioners has pressed before
Court a two fold contention--That impugned notification is ultra vires, Section
6 of Protection of Economic Reforms Act, 1992, in so far as it is repugnant to
SRO No. 1284/(1)/90, dated 13.12.1990 and is therefore, of no legal effect;--In
support of his first contention, learned counsel for petitioner drew Court's
attention to provisions of Protection of Economic Reforms Ordinance, 1991,
promulgated by President on 9th December, 1991 i.e. when Notification No.
1284(1)/90 dated 13.12.1990 had not been superseded--Section 6 of Ordinance
reads as under--fiscal incentives for investment provided by Government through
statutory orders listed in Schedule or otherwise notified shall continue in
force for terms specified therein and shall not be altered to disadvantage of
investors--Learned Counsel argued that under aforesaid statute, financial
incentives granted to investors in terms of notification acquired statutory
protection and Section 3 of Act provided that it would override all other laws
including Customs Act--Therefore such incentives or privileges could not be
withdrawn through a notification issued under Section 19 of Customs Act till
30th June, 1995--As such impugned notification purporting to levy 10% custom
duty was ultra vires powers of Federal Government available under Customs
Act--In support of his contention Learned Counsel relied upon unreported
judgment of Honourable Supreme Court in Gatron Industries Limited vs.
Government of Pakistan and others (Civil Appeal No. 223/94), where reversing
judgment of High Court of Baluchistan Honourable Supreme Court has held that
exemption under Notification No. SRO No. 1284(1)/90 dated 13.12.1990 having
been granted statutory protection, same could not be destroyed, through a
subsequent notification under Customs Act--According to learned counsel this
amendment being a beneficial provision is required to be given retrospective
effect--In this context he referred to a recent judgment of same Bench in case
of Polygon Limited v. Government of Pakistan (C.P. No. D-2838 of 1992),
wherein, respectfully following law declared by Honourable Supreme Court in
Army Welfare Sugar Mill v. Federation of Pakistan (1992 S.C.M.R. 1652), Court
had indeed taken above view--Nevertheless, keeping in view legal position authoritatively
settled by Honourable Supreme Court, High Court is of the opinion that same has
to be held void and inoperative to extent to which it is repugnant to statutory
protection available to petitioners under Section 6 of Protection of Economic Reforms
Act--These petitions therefore, allowed--Bank guarantees furnished shall stand
discharged and amount deposited by petitioners shall be refunded to them. PLJ 2001
14.
Power of Government to levy and exempt duty--Federal Government has got power to levy
customs duty as also power to exempt any goods so imported from levy of duty
subject to conditions specified therein--Exemption was granted on goods in
question, subject to condition that the same were to be imported during period
commencing Ist. December 1990 and ending on 30th June 1995--Goods in question,
which were subject matter of constitutional petition were admittedly not
imported during specified period—Admitted position was that letter of credit
were issued in November 1995 and Bill 'of lading was dated 29th August
1996--Petitioner, thus, could not claim exemption on basis of specified SRO
dated 14th May 1992. PLJ 2000
15.
Protection of Economic
Reforms Ordinance, 1991--Petitioners owned industrial undertaking located in Hub Industrial
Trading Estate in Province of Baluchistan and had imported certain machinery
for their plant during 1992-93--Machinery of kind imported, which was
admittedly not being manufactured in Pakistan, was at one time altogether
exempted from custom duty through notification issued under Section 19 of
Customs Act pursuant to a policy decision of Government in providing incentives
for industrialization in rural areas--However, when petitioners imported such
machinery it was subjected to a levy of custom duty at rate of Rs. 10%
advalorem in terms of SRO No. 484(1)/92 dated 14.5.1992--Petitioners have
called in question aforesaid levy of custom duty through these
petitions--Learned counsel for petitioners has pressed before Court a two fold
contention--That impugned notification is ultra vires, Section 6 of Protection
of Economic Reforms Act, 1992, in so far as it is repugnant to SRO No.
1284/(1)/90, dated 13.12.1990 and is therefore, of no legal effect;--In support
of his first contention, learned counsel for petitioner drew Court's attention
to provisions of Protection of Economic Reforms Ordinance, 1991, promulgated by
President on 9th December, 1991 i.e. when Notification No. 1284(1)/90 dated
13.12.1990 had not been superseded--Section 6 of Ordinance reads as under--fiscal
incentives for investment provided by Government through statutory orders
listed in Schedule or otherwise notified shall continue in force for terms
specified therein and shall not be altered to disadvantage of
investors--Learned Counsel argued that under aforesaid statute, financial
incentives granted to investors in terms of notification acquired statutory
protection and Section 3 of Act provided that it would override all other laws
including Customs Act--Therefore such incentives or privileges could not be
withdrawn through a notification issued under Section 19 of Customs Act till
30th June, 1995--As such impugned notification purporting to levy 10% custom
duty was ultra vires powers of Federal Government available under Customs
Act--In support of his contention Learned Counsel relied upon unreported
judgment of Honourable Supreme Court in Gatron Industries Limited vs.
Government of Pakistan and others (Civil Appeal No. 223/94), where reversing
judgment of High Court of Baluchistan Honourable Supreme Court has held that
exemption under Notification No. SRO No. 1284(1)/90 dated 13.12.1990 having
been granted statutory protection, same could not be destroyed, through a
subsequent notification under Customs Act--According to learned counsel this
amendment being a beneficial provision is required to be given retrospective
effect--In this context he referred to a recent judgment of same Bench in case
of Polygon Limited v. Government of Pakistan (C.P. No. D-2838 of 1992),
wherein, respectfully following law declared by Honourable Supreme Court in
Army Welfare Sugar Mill v. Federation of Pakistan (1992 S.C.M.R. 1652), Court
had indeed taken above view--Nevertheless, keeping in view legal position
authoritatively settled by Honourable Supreme Court, High Court is of the
opinion that same has to be held void and inoperative to extent to which it is
repugnant to statutory protection available to petitioners under Section 6 of
Protection of Economic Reforms Act--These petitions therefore, allowed--Bank guarantees
furnished shall stand discharged and amount deposited by petitioners shall be
refunded to them. PLJ 2001
16.
Regulatory duty -- Whether exemption notified under
Section 19 of Act in respect of Customs duty, will also apply to Regulatory Duty
imposed under Section 18(2) -- Question of --Government has wide powers to
grant exemption from payment of customs duties under Section 19(1) of Act, but
it can only be granted in respect of Customs duties chargeable at relevant time
-- Held: Notification issued under Section 19(1) of Customs Act, could not be
extended to other duties levied after the issue of such notification --
Petition dismissed. PLJ 1993
17.
Regulatory duty--Imposition & exemption of--Regulatory duty being transitory in nature
is always imposed subject o limitation contained in Section 18(2)(3)(4) of the
Act and existence of conditions essential for such levy, and Government can
continue its imposition through a fresh notification after expiry of earlier
notification, if such conditions still exist--In absence of specific mention of
regulatory duty in an exemption notification issued under Section 19 of the
Act, the customs duty would not include regulatory duty leviable under Section
18(2)--Exemption from regulatory duty, cannot be claimed in general under
notification giving such exemption beyond financial year during which it is
enforced. PLJ 2001
Sales Tax Act, 1990 (VII of 1990), S.
13--Power of Government to levy and exempt duty--Federal Government has got
power to levy customs duty as also power to exempt any goods so imported from
levy of duty subject to conditions specified therein--Exemption was granted on
goods in question, subject to condition that the same were to be imported
during period commencing Ist. December 1990 and ending on 30th June 1995--Goods
in question, which were subject matter of constitutional petition were
admittedly not imported during specified period—Admitted position was that
letter of credit were issued in November 1995 and Bill of lading was dated 29th
August 1996--Petitioner, thus, could not claim exemption on basis of specified
SRO dated 14th May 1992. PLJ 2000
18. Whether Office Order issued on the basis of ECC decision of cabinet Division could not be considered a notification issued in terms of provisions of Customs Act, therefore exemptions claimed on basis thereof, could not be given effect to by amending judgment already pronounced by the Court in main writ petition and if respondents wanted to enforce decision of ECC of Cabinet Division, which was based on separate cause of action, they should have filed separate petition as the order passed by Court disposing of main writ petition could not amended-so as to give effect to the decision in question--Leave to appeal granted to consider was the contentions-- PLJ 2003 SC 385
19A. Presumption that incidence of duty has been passed on to the buyer.- Every person who has paid the customs duty and other levies on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passsed on the full incidence of such customs duty and other levies to the buyer as a part of the price of such goods.
19B. Rounding off of duty, etc.- The amount of duty, interest, penalty, fine or any other sum payable, and the amount of refund, drawback or any other sum
due, under the provisions of this Act shall be rounded off to the nearest one hundred rupees and, for this purpose, where such amount is fifty rupees or more, it shall be increased to one hundred rupees and if such part is less thatn fifty rupees, it shall be ignored.
20. Board’s power to grant exemption from duty in exceptional circumstances.- Under circumstances of exceptional nature, the Board may, subject to such conditions, limitations or restrictions, if any, as it thinks fit to impose, by a special order in each case recording such circumstances, exempt any goods from payment of the whole or any part of the customs-duties chargeable thereon and may remit fine, penalty, charge or any other amount recoverable under this Act.
Court Decision
Mis-declaration of imported goods so as to avoid customs duty and sales tax--Imposition of fine--Dismissal of appeal by High Court--Legality--Perusal of record coupled with findings of Customs Central Excise and Sales Tax Appellate Tribunal and the High Court clearly showed that petitioner had mis-declared description of goods and claimed evasion of tax under S.R.O. No. 602 which fact was evident from reply to show-cause notice wherein he had not claimed any concession under S.R.O. No. 643, thus, stance taken by petitioner at appellate stage by moving application for bringing amendment in memorandum of appeal to the extent that in place of SRO No. 602, SRO No. 643 be substituted was rightly declined--Only 10 percent of total consignment having been examined by customs staff, petitioner was rightly afforded benefit of 90 per cent of goods by Tribunals as well as by the High Court--Even otherwise, appeal before High Court was not competent in as much as, Tribunal had not referred any question of law arising out of the order to High Court for determination--Leave to appeal against judgment of High Court was thus, refused. 2004 SCMR 545 =PLJ 2004 SC 70
21. Power to deliver certain goods with-out payment of duty and to repay duty on certain goods.- Subject to such conditions, limitations or restrictions as it
thinks fit to impose, the Board may, in such general cases as may be prescribed by rules or in particular cases by special order, authorize-
(a) the delivery without payment of the customs-duties chargeable thereon of goods which are imported only temporarily with a view to subsequent exportation;
(b) Omitted.
(ab) the payment of any amount to the importer or local buyer of any goods in order to compensate any commitment given to that person
for levy of zero or any lower rate of custms duty on the import or local procurement of any goods;
(c) the repayment in whole or
in part of the customs-duties paid on the importation of any goods which have
been used in the production, manufacture, processing, repair or refitting in
Pakistan of goods meant for
exportation, or for supply to industrial units, projects, institutions,
agencies and organizations, entitled to import the same at concessionary rates:
Provided that no repayment may be granted in a case in which the amount involved is less than one hundred rupees; and
(d) without prejudice to the provisions of clause (c), the Federal Government may, by notification in the Official Gazette, direct that drawback or repayment shall not be allowed in respect of any goods of specified description or may be allowed subject to such restrictions and conditions as may be specified in the notification.
[(21A. Power to defer collection of customs-duty.- [(1)] Subject to such conditions, limitations or restrictions as it thinks fit to impose, the Board may, in such general cases as may be prescribed by rules or in particular cases by special order, defer the collection of customs-duties either in whole or in part.
[ (2) Where deferment of customs-duties is allowed by the Board under sub-section (1), a surcharge not exceeding fifteen per cent per annum shall also be payable on the deferred amount from such date and in the manner as the Board may by rules prescribe.]
22. Re-importation of goods produced or manufactured in Pakistan.- If goods produced or manufactured in and exported from Pakistan are subsequently imported into Pakistan, such goods shall be liable to customs-duties and be subject to all the conditions and restrictions, if any, to which goods of the like kind and value not so produced or manufactured are liable on the importation thereof:
Provided if such goods have been imported within one year of their exportation and have been consigned to the person in whose account they were exported and have not undergone any processing since their exportation, the appropriate officer not below the rank of Assistant Collector or Deputy Collector of Customs may admit the goods-
(a) Where at the time of exportation of such goods, rebate, refund or drawback of any customs or excise duty or any other tax levied by the Federal Government or any tax, cess or duty levied by the Provincial Government was allowed on payment of customs duty equal to the amount of such rebate, refund or drawback as the case may be;
(b) where such goods were exported in bond, without payment of –
(i) the customs-duty chargeable on the imported materials, if any, used in the manufacture of the goods; or
(ii ) the excise duty chargeable on the indigenous materials, if any, used in the manufacture of such goods; or
(iii) the excise duty, if any, chargeable on such goods; or
(iv) any other tax chargeable on the material used in the manufacture of such goods; or
(v) any other tax chargeable on such goods, on payment of customs-duty equal to the aggregate amount of all such duties and taxes calculated at the rates prevailing at the time and place of importation of goods; or
(c) in any other case, without payment of duty.
23. Goods, derelict, wreck, etc.- All goods, derelict, jetsam, flotsam and wreck, brought or coming into Pakistan, shall be dealt with as if they were imported into Pakistan.
24. Provisions and stores may be exported free of duty.- Goods produced or manufactured in Pakistan and required as provisions and stores on any conveyance proceeding to any foreign port, airport or station may be exported free of customs-duty, in such quantities as the appropriate officer may determine having regard to the size of the conveyance, the number of passengers and crew and the length of the voyage or journey on which the conveyance is about to depart.
25. Determination of Customs value of
goods.- (1) Transaction Value.- The customs value of imported
goods, subject to the provisions of this section and the rules, shall be the
transaction value, that is the price actually paid or payable for the goods
when sold for export to
Provided that-
(a) there are no restrictions as to the disposition or use of the goods by the buyer other than the restrictions which –
(i) are imposed or required by law;
(ii) limit the geographical area in which the goods may be resold; or
(iii) do not affect the value of the goods;
(b) the sale or price is not subject to some condition or consideration for which a value cannot be determined with respect to the goods being valued;
(c) no part of the proceeds of any subsequent resale, disposal or use of the goods by the buyer will accrue directly or indirectly to the seller, unless an appropriate adjustment is made in accordance with the provisions of sub-section (2) (e); and
(d) the buyer and seller are not related, or where the buyer and seller are related, that the transaction value is acceptable for customs purposes under the provisions of sub-section (3).
(2) Subject to clause (b), in determining the customs value under sub-section(1),-
(a) there shall be added to the price actually paid or payable for the imported goods, if not already included in the price; the cost of transport, excluding inland freight after importation, of the imported goods to the Port, Airport or place of importation;
(i) loading, unloading, and handling charges associated with the transport of the imported goods to the Port, airport or place of importation; and
(ii) the cost of insurance;
(b) there shall also be added to such price, to the extent that they are incurred by the importer but are not included in the price actually paid or payable of the imported goods-
(i) commissions including indenting commissions and
brokerage, except buying commissions;
(ii) the cost of containers which are treated as being one
for customs purposes with the goods in question; and
(iii) the cost of packing whether for labour or materials;
(c) there shall also be added to such price the value, apportioned as appropriate, of the following goods and services where supplied directly or indirectly by the importer or his related person free of charge or at reduced cost, for use in connection
with the production and sale for export of the imported goods, to the extent that such value has not been included in the price actually paid or payable:
(i) materials, components, parts and similar items incorporated in the imported goods;
(ii) tools, dies, moulds and similar items used in the production of the imported goods;
(iii) materials consumed in the production of the imported
goods; and
(iv) engineering, development, artwork, design work and plans and sketches undertaken elsewhere than in Pakistan and necessary for the production of the imported goods;
(d) there shall also be added to such price, royalties and licence fees related to the goods being valued that the buyer must pay, either directly or indirectly, as a condition of sale of the goods being valued, to the extent that such royalties and fees are not included in the price actually paid or payable; and
(e) there shall also be added to such price, the value of any part of the proceeds of any subsequent resale, disposal or use of the imported goods that accrues directly or indirectly to the seller;
(f) if sufficient information is not available for any reason, with respect to any adjustments referred to above, the transaction value, of the imported goods shall be treated , for the purpose of sub-section (1), as the one that cannot be determined;
(3) If the buyer and seller are related in terms of the rules the transaction value shall be accepted for the purposes of sub-section (1); whenever:
(a) the examination of the circumstances surrounding the sale of the imported goods as demonstrated by the importer, indicate that the relationship did not influence the price; or
(b) the importer demonstrates that such value closely approximates to one of the following Test Values occurring at or about the same time:
(i)
the transaction value in sales to unrelated buyers of identical or
similar goods for export to
(ii) the customs value of identical or similar goods as determined under the provisions of sub-section (7) (deductive value);
(iii) the customs value of identical or similar goods as determined under the provisions of sub-section (8) (computed value).
Provided that in applying the foregoing tests due account shall be taken of demonstrated differences in commercial levels, quantity levels, the elements enumerated in sub-section (2) and cost incurred by the seller in sales in which the seller and the buyer are not related that are not incurred by the seller in sales in which the seller and the buyer are related;
(4) Where, in relation to the goods being valued, the appropriate officer is of the opinion that the importer has not, for the purposes of clause (a) of sub-section (3), demonstrated that the relationship did not influence the price or, for the purposes of clause (b) of sub-section (3), that the declared price at which the goods are imported does not closely approximate to one of the test values mentioned therein, the appropriate officer shall inform the importer of his reservations in writing and give the importer an opportunity to justify the price difference. If the importer fails to justify the price difference, the customs value cannot be determined under the provisions of sub-section (1).
(5) TRANSACTION VALUE OF IDENTICAL GOODS.- If the customs value of the imported goods cannot be determined under the provisions of sub-section (1), it shall, subject to rules, be the transaction value of identical goods
sold for export
to
(a) In applying the provisions of this sub-section, the transaction value of the identical goods in a sale at the same commercial level and substantially the same quantity as the goods being valued shall be used to determine the customs value of imported goods.
(b) Where no sale referred to in clause (a) is found, the transaction value of identical goods sold at a different commercial level and/or in different quantities, adjusted to take account of differences attributable to commercial level and/or to quantity
shall be used, provided that such adjustments can be made on the basis of demonstrated evidence which clearly establishes the reasonableness and accuracy of the adjustment, whether the adjustment leads to an increase or decrease in the value.
(c) Where the costs and charges referred to in clause (a) of sub-section (2) are included in the transaction value of identical goods, an adjustment shall be made to take account of significant differences in such costs and charges between the goods being valued and the identical goods in question arising from differences in distances and modes of transport.
(d) If, in applying the provisions of this sub-section, there are two or more transaction values of identical goods that meet all the requirements of this sub-section and clauses (b),(d),(e) and (f)
of sub-section (13), the customs value of the imported goods shall be the lowest such transaction value, adjusted as necessary in accordance with clauses (b) and (c).
(6) TRANSACTION VALUE OF SIMILAR GOODS.- If the customs value of the imported goods cannot be determined under the provisions of sub-section (5), it shall, subject to clauses (c), (d), (e) and (f) of sub-section (13) and rules, be the transaction value of similar goods sold for export to Pakistan and exported at or about the same time as the goods being valued, and the provisions of clauses (a), (b), (c) and (d) of sub-section (5) shall, mutatis mutandis, also apply in respect of similar good.
(7) DEDUCTIVE VALUE.- If the customs value of the imported goods cannot be determined under sub-section (6), it shall, subject to rules, be determined as follows:
(a) if the imported goods or identical or similar imported goods are sold in Pakistan in the condition as imported, the customs value of the imported goods shall be based on the unit price at which the imported goods or identical or similar imported goods are so sold in the greatest aggregate quantity, at or about the time of the importation of the goods being valued, to persons who are not related to the persons from whom they buy such goods, subject to the deductions for the following:-
(i)
either the commission usually paid or agreed to be paid or the additions
usually made for profit and general expenses in connection with sales in
(ii) the usual costs of
transport and insurance and associated costs incurred within
(iii) Omitted.
(iv) the customs duties and other
taxes payable in
(b) If neither the imported goods nor identical nor similar imported goods are sold at or about the time of importation of the goods being valued, the customs value shall, subject otherwise to the provisions of clause (a) of this sub-section, be based on the unit price at which the imported goods or identical or similar imported goods are sold in Pakistan in the conditions as imported at the earliest date after the importation of the goods being valued but before the expiry of ninety days after such importation.
(c) If neither the imported goods nor identical nor similar imported goods are sold in the country of importation in the condition as imported, then, if the importer so requests, the customs value shall be based on the unit price at which the imported goods, after further processing, are sold in the greatest aggregate quantity to persons in the country of importation who are not related to the persons from whom they buy such goods, due allowance being made for the value added by such processing and the deductions provided for in clause (a).
(8) COMPUTED VALUE.- If the customs value of the imported goods cannot be determined under sub-section (7), it shall, subject to rules, be based on computed value which shall consist of the sum of :-
(a) the cost of value of materials and fabrication or other processing employed in producing the imported goods;
(b) an amount for profit and general expenses equal to that usually reflected in sales of goods of the same class or kind as the goods being valued which are made by producers in the country of exportation for export to Pakistan; and
(c) the cost or value of all other expenses as specified in clause (a) of sub-section (2).
(9) FALL BACK METHOD.- If the customs value of the imported goods cannot be determined under sub-sections (1),(5),(6),(7) and (8), it shall, subject to the rules, be determined on the basis of a value derived from among the methods of valuation set out in sub-sections (1),(5),(6),(7) and (8), that, when applied in a flexible manner to the extent necessary to arrive at a customs value.
(10) Sub-sections (1), (5), (6), (7), (8) and (9) define how the customs value of imported goods is to be determined under this Act. The methods of customs valuation are required to be applied in a sequential order except reversal of the order of sub-section (7) and (8), at the importer’s request, if so agreed by Collector of the Customs.
(11) Nothing contained in this section or the rules, shall be construed as restricting or calling into question the rights of the appropriate officer of customs to satisfy himself as to the truth or accuracy of any statement, information, document or declaration presented for customs valuation purposes.
(12) An appropriate officer of Customs appointed by an order in writing by the Board, or Collector of Customs, on case to case basis, shall have free access to business premises, registered office, warehouses or any other place, where any stocks, business records or documents required under this Act are kept or maintained belonging to any person after serving notice to such person whose business activities are covered under this Act or who may be required for audit, inquiry or investigation in any offence committed under this Act by such person, his agent or any other person: and such officer may, at any time during the working hours, inspect the goods, stocks, records, data, documents, correspondence, accounts and statements and any other record or documents and may take into custody such records in whole or in part, in original or copies thereof against a signed receipt. The Board or Collector of Customs may also order for audit for ascertaining the correctness of declarations, documents records and value of imported goods. All searches and seizure of documents made under this sub-section shall be carried out mutatis mutandis in accordance with the provisions of the Code of Criminal Procedure, 1898(Act V of 1898).
(13) For the purposes of this section,-
(a) “customs value of imported goods” means the value of goods for the purposes of levying duties of customs and other taxes on imported goods;
(b) “identical goods” means goods which are the same in all respects including physical characteristics, quality and reputation. Minor differences in appearance would not preclude goods otherwise conforming to the definition from being regarded as identical;
(c) “similar goods” means goods which although not alike in all respects, have like characteristics and like component materials which enable them to perform the same functions and to be commercially interchangeable. The quality of the goods, their reputation and the existence of a trademark are among the factors to be considered in determining whether goods are similar;
(d) the terms “identical goods” and “similar goods” do not include as the case may be, goods which incorporate or reflect engineering development, art work, design work, and plans and sketches for which no adjustment has been made under sub-section 2(c) (iv) because such elements were undertaken in Pakistan;
(e) goods shall not be regarded as “identical goods” or “similar goods” unless they were produced in the same country as the goods being valued;
(f)
goods produced by a different person shall be taken into
account only when there are no identical goods or similar goods, as the
case may be, produced by the same person as the goods being valued; and
(g)
“goods of the same class or kind” means goods which fall
within a group or
range of goods produced by a particular industry or industry sector, and
includes identical or similar goods.
(14) Omitted.
(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 costs, charges and expenses(including
any export duty which may be chargeable) 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 1.-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 influenced 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 persons 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 purposes of this 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.]
Court Decision
Mode for determing value of imported goods prior to 1st January, 2000 in terms of S. 25 of Customs Act, 1969 as it existed prior to amendment--Prior to amendment in S. 25, Customs Act 1969, value of imported goods was to be taken as normal value--Department in first instance had accepted bill of entry and import invoices submitted by importer, accepted version of importer that goods imported were non-genuine parts, charged them to custom duty and other taken and released those consignments--Pre-supposition of department before making out case of contravention was, that normal price of goods in question, was that which was given in price list issued by original companies of manufacturing--Such pre-supposition could only be taken if department would have scrutinized examined and determined classification of goods in first instance which exercise was not carried out by it--No case of contravention was thus proved against appellant and provision, of S. 32, Customs Act 1969 were misapplied against them--Appeal against order of
customs, central Excise and Sales
Tax Appellate Tribunal was accepted while order of Member Customs, Central
Board of Revenue was restored. PLJ 2004
[25A. Powers to determine the customs value.- (1) Notwithstanding the provisions contained in section 25, the Collector of Customs on his own motion, or the Director of Customs Valuation on a reference made to him by any person, may determine the customs value of any goods or category of goods imported into or exported out of Pakistan after following the scheme and sequential order as laid down under section 25.
(2) The customs value determined under sub-section (1) shall be the applicable customs value for assessment of the relevant imported or exported goods.
(3) In case of any conflict in the customs value determined under sub-section (1), the Director-General of Customs Valuation shall determine the applicable customs value.]
[25B. Omitted.]
[25C. Power to takeover the imported goods.- (1) If any person makes an offer in writing to buy the imported goods sought to be cleared at value declared by an importer in the goods declaration, and the Collector of Customs is satisfied that the declared value is not the actual transactional value, he may after approval of the Board] order the following without prejudice to any other action against the importer or his authorised agent, namely:-
(i) entertain offer by any other person to buy these goods at substantially higher value than the declared customs value in the goods declaration and payment of customs duties and other leviable taxes thereon, provided such offer is accompanied by a pay order equal to twenty-five per cent of the amount of each [such offer and duties and other taxes calculated in accordance with the offer];
(ii) give an option in writing to the importer of such goods for clearance of imported goods at the customs value equal to such highest offer for purchase of goods and payment of customs duties and other taxes chargeable thereon; and
(iii) in case the importer fails to clear the imported goods within seven days of the receipt of notice under clause (ii) above, the appropriate officer may takeover the goods on payment of customs value declared in the goods declaration and an amount equal to five per cent of such declared value;
(2) The imported goods taken over under sub-section (1) shall be delivered to the offerer on submission of two pay orders, one equal to the customs value declared in the goods declaration plus five per cent in the name of importer and the other pay order equal to the remaining amount of value of imported goods and the amount of customs duties and other taxes leviable on the imported goods in the name of Collector of Customs;
(3) In case the local buyer fails to take the delivery of the goods on payment of value and taxes as prescribed in sub-section (2) above, the pay order equal to twenty-five per cent of the amount shall be fore-feited in favour of the Federal Government and imported goods shall be released to the importer as per customs value determined under sections 25 or 25A as the case may be.]
[26. Obligation to produce documents and provide information.- (1) Any person, as and when required, in writing, by an officer of customs not below the rank of an Assistant Collector, shall,-
(a) furnish information relating to importation, exportation, purchase, sales, transportation, storage or handling of any goods imported or exported;
(b) produce for examination, documents or records that the appropriate officer considers necessary or relevant to the audit, inquiry or investigation under the Act;
(c) allow the appropriate officer of Customs to take extracts from or make copies of documents or records; and
(d) appear before an officer of Customs and answer any question put to him concerning goods, documents, records and transactions relating to the audit or inquiry or investigation.
(2) The appropriate officer of Customs conducting an audit, inquiry or investigation as the case may be, under this Act, may require in writing any person, department, company or organization to furnish such information as is held by that person, department, company or organization which in the opinion of the appropriate officer is required for the completion of such audit, inquiry or investigation.
(3) The Board may require in writing any person, department, company or organization, as the case may be, to provide information held by that person, department, company or organization, which in 16 the opinion of the Board is required for purposes of formulation of policy or administering the laws of Customs, Sales Tax, Federal Excise or Income Tax.
(4) Every person, department, company or organization shall furnish the information requisitioned by the Board or the appropriate officer within the time specified in the notice.]
[26A. Conducting the audit.- (1) The appropriate officer of customs conducting any audit under this Act shall proceed in the manner as the Board may by rules prescribe.
(2) Where any audit or inquiry or investigation is to be conducted for the purpose of ascertaining the correctness of any declaration or document or statement, for determining the liability of any person for duty, taxes, fees, surcharge, fines and penalties, or for ensuring compliance with all other laws administered by the customs, an appropriate officer of Customs may,-
(a) examine, or cause to be examined, upon reasonable notice, any record, or any statement or declaration or document 17 described in the notice
with reasonable specificity, which may be relevant to such audit, inquiry or investigation ;
(b) summon , by giving a notice and reasonable time,-
(i) the person who imported, or exported or transported or stored or held under customs bond, or filed a goods declaration, drawback or refund claim;
(ii) any officer, employee or agent of any person described in clause (a); and
(iii) any person having possession, custody or care of records and documents required to be kept under the Act, and any other person, as deemed proper, to appear before him at a reasonable time and to produce such records and documents as specified in the notice and to give such testimony under oath as may be relevant.
26B. Access for the purposes of audit.- (1) The appropriate officer of Customs, after giving a notice in writing specifying the date of visit, shall have access to business or manufacturing premises, registered office or any other place where any goods, stocks, documents or records relating to the ongoing audit are kept or maintained. Such officer may inspect the goods, stocks, documents, records, data, correspondence, accounts, statements, utility bills, bank statements, information regarding nature and sources of funds or assets with which his business is financed, and any other records or documents required under any Federal or Provincial laws, maintained in any form or mode. Such an officer may take into his custody such documents, records or any part thereof, in such form as he may deem fit, against a signed receipt.
(2) In all cases, except where it would defeat the purpose of the audit, a reasonable advance notice regarding a visit shall be given to the person concerned.
(3) Whosoever causes any obstruction or fails to provide any documents, record, statement etc, as required under subsection (1), with an intention to defeat the purpose of the Act by way of destroying, altering or concealing any books, documents or records required to be maintained under this Act, shall be guilty of an offence under this section.]
[27. Abatement allowed on damaged or deteriorated goods.- (1) If before the examination of any imported goods the owner thereof informs [an officer of Customs not below the rank of] [Assistant Collector] in writing that the value of the goods as declared in the [goods declaration] has diminished as a result of some damage or deterioration sustained by them before or during unloading at the port of destination, an officer of Customs not below the rank of [Assistant Collector] may appraise the value of the damaged or deteriorated goods in the manner given in sub-section (2) and the owner shall be allowed abatement of duty in proportion to the diminution of value so appraised, whether duty is leviable ad valorem or otherwise.
(2) For the purposes of this section, the value of damaged or deteriorated goods may be ascertained by either of the following methods at the option of the owner:-
(a) value may be appraised by an Officer of Customs not below the rank of [Assistant Collector] on the basis of physical examination of the goods; or
(b) such goods may be sold by public auction or by tender or, with the consent of the owner, in any other manner and the gross sale proceeds shall be deemed to be the value of such goods inclusive of duties.]
[(3) In the case of short-landing or short-shipment of goods, the appropriate officer may, if satisfied with regard to the bonafide of short-landing or short-shipment of goods, allow reduction in duty proportionate to the goods short-landed or short-shipped on first examination.]
Court Decision
Import of Textile Machinery--Filing of Bill of Entry for
placing it in customs Bonded ware house--Prior to removal 26 cases
were destroyed in a fire Notice for payment of Tax on said goods--Writ
against--According to S. 108 of Act, 1969, if any goods are damaged due to
unavoidable accident after they have been entered for warehousing and assessed
u/S. 80 and before they are cleared for home consumption, their value in
damaged state may be apprised--Since, the petitioner had entered goods for
ware housing before the same were burnt, he was entitled to relief
provided by Section 108--Petitioner was in no way responsible for fire which
accrued due to some unavoidable circumstances--Goods were not in possession or
control of petitioner at that time and had, as a matter of fact, not even
cleared customs barrier--It is highly anomalous to demand payment of customs
duty on such goods--Impugned demand was declared to be without any lawful
authority--Petition allowed. PLJ 2000
[27A. Allowing denaturing or mutilation of goods.- At the request of the owner, [to be made before the filing of goods declaration,] the denaturing or mutilation or scrapping of imported goods, which are ordinarily used for more than one purpose, may be allowed, as prescribed by rules so as to render them unfit for one or more such purposes and where any goods are so denatured or mutilated or scrapped they shall be chargeable to duty at such rate as may be applicable if the goods had been imported in the denatured or mutilated form or as scrap.]
28. Power to test and denature imported
spirit.- When by any law for the time being in force a duty lower
than that prescribed by this Act is imposed on denatured spirit, any such
spirit imported into
29. Restriction on amendment of bill of declaration.- Except as provided in section 88, no amendment of or goods declaration relating to goods assessed for duty on the declared value, quantity or description thereof shall be allowed after such goods have been removed from the customs-area [or assigned a Customs Reference Number electronically, as the case may be].
30. Date of determination of rate of import duty.- The rate of duty applicable to any imported goods shall be the rate of duty in force;
in the case of goods cleared for home consumption under section 79, on the date on which a bill of entry or goods declaration is manifested under that section; and
(b)
in the case of goods cleared from a warehouse under section 104, on the date on which a bill of entry or goods declaration for clearance of such goods is manifested under that section:
Provided that, where a goods declaration has been manifested in advance of the arrival of the conveyance by which the goods have been imported, the relevant date for the purposes of this section shall be the date on which the manifest of the conveyance is delivered at the port of first entry:
Provided further that, in respect of goods for the clearance of which a bill of entry or goods declaration for clearance has been manifested under section 104, and the duty is not paid within seven days of the bill of entry or goods declaration being manifested, the rate of duty applicable shall be the rate of duty on the date on which the duty is actually paid :
Provided further that in case of the goods illegally removed from the warehouse, the rate of duty shall be the rate prevalent either on the date of in-bonding or detection of case or date of payment of the duty and taxes, whichever is higher:
Provided further that in case of exercising option for redemption of fine in lieu of confiscation of the goods seized during anti-smuggling operations, the rate of
duty shall be the rate prevalent either on the date of seizure or date of payment of duty and taxes, whichever is higher:
Provided further that the Federal Government may, by notification in the official Gazette, for any goods or class of goods, specify any other date for the determination of rate of duty.
Explanation:- For the purpose of this section “manifested” means that when a machine number is allocated to bill of entry or goods declaration and is registered in Customs record.
Court Decision
Date for determination of value and rate of import duty :-- Chargeability of duty having arisen, any change in rate of customs duty or imposition of additional duty of customs, is to be determined with reference to dates of filing of bill entry for home consumption or taking out goods from bonded warehouses as provided in S. 30, Customs Act, 1969--Rate of duty applicable to any imported goods under S. 30 of Act is duty which is applicable on date of filing of bill of entry for home consumption under S. 79 of Act and in case of goods cleared from bonded warehouse on date goods are ex-bonded from warehouse. PLJ 2000 SC 109
Goods unlawfully removed from warehouses--Effect--Consignment
in question, having been stored in a bonded warehouse, custom duties would be
payable at the rate prevailing on the date of actual removal of goods from the
warehouse for consumption--Goods bonded in warehouse had been removed therefrom
without payment of custom duties and replaced with goods which had no nexus
with description given in relevant Bills of Entry--Goods in question, having
been removed from public warehouse respondent’s were liable to pay penalty both
under Sections 111 & 156 (1) (57)--Custom Authorities would determine penal
liability (amount) strictly in terms of S. 156 (57) which envisages penalty
equal to five time the duty chargeable on goods so deficient--Relevant data of
custom duty would be the date of detection of removal of goods from the bonded
warehouse as the date of ex-bonding. PLJ 2004
Imposition of regulatory duty--Section 31-A, Customs Act, 1969, provides that for purposes of Sections 30 and 31 of Act, rate of duty applicable to goods includes amount of duty imposed under Section 18 of Act, Section 2 of Finance Ordinance, 1982 and Section 5 of Finance Act, 1985, in addition to amount of customs duty that may become payable as a consequence of withdrawal of whole or any part of exemption or concession from duty whether before or after conclusion of contract or agreement for sale of goods or opening of letters of credit in respect of contract notwithstanding anything contained in any other law for time being enforced , or judgment of any Court--It is, therefore, quite dear’ that under this section duties whether they are levied under Section 18(1) or 18(2) of Act are to be paid as provided under Section 30 notwithstanding any other law or judgment of Court--Imposition of regulatory duty under Section 18(2) of Act, otherwise could not be objected to in view of provisions contained in Section 31-A of Act and same was recoverable on goods imported into Pakistan in accordance with provisions of Section 30 of Act notwithstanding fact that notification issued under Section 19 of Act exempting such goods either wholly or partially from payment of customs duty leviable under Section 18(1) of Act, was holding field. PLJ 2000 SC 109
Imposition of regulatory duty--Date of determination of value and rate of import duty--Under Section 30, Customs Act, 1969, rate of duty for goods cleared for home consumption, is rate applicable on date bill of entry is presented under this section--Therefore, if on ‘date importer had submitted his bill of entry, notification issued by Government under Section 18(2) of Act, had not come into effect, regulatory duty could not be recovered on such goods--However, on facts concerned authorities will determine individual cases in light of observations by Supreme Court. PLJ 2000 SC 109
Importer
claiming exemption from payment of customs duty in terms of S.R.O. No.
212(1)/91 and No. 213(1)/91, dated 14.3.1991 which allowed exemption from
customs duty and Sales Tax to machinery imported and letter of credit opened
upto 30.6.1996 for installing industry in special industrial
zones-:Subsequently by another S.R.O. dated 30.1.1991, S.R.O. No. 70(1)/95 was
amended whereby crucial date for opening of Letter of credit was substituted to
be 31.1.1996--Later on vide S.R.O. No: 434 (1)/96, dated 30.6.1996, both
S.R.Os. dated 14.3.1991 were rescinded--Whether Importer could claim exemption
in circumstances--Question of--Notifications/S.R.Os. were issued by competent
authority in exercise of powers conferred upon them under Customs Act or Sales
Tax for purpose of granting exemption in Customs duty and other Taxes--Because
there had not been any executive commitment by Govt. of Pakistan or its
subordinate functionary, therefore, after rescinding Notification, no benefit
therefrom can be claimed by petitioner on pretext that in view of incentives
provided by Govt. letter of credit was opened on 30.5.1996--Exemption of 100%
custom duty and other sales Tax was available to importers establishing
industry in special zones provided letter of credit is opened upto
30.1.1995--Amendment had been introduced in original S.R.O. about four months
before opening of letter of credit by petitioner--Held: Petitioner could not
get benefit of exemption of customs duty and sales Tax because letter of credit
was opened by then on 30.5.1996. PLJ 1998
Import of machinery--Custom duty--Levy of--Whether rate of duty will be applicable as provided in second proviso to Section 30--Qustion of--Held: As question raised requires interpretation of Section 30 of Customs Act, which is of general importance, leave is granted. PLJ 1994 Note 4
Leave to appeal was granted to consider central excise duty in case of ship-breaking was to be recovered as customs duty under S. 30 of Customs Act with reference to the date on which bill of entry was filed and whether benefit of Notification No. S.R.O. 457(1)/96 could be availed by respondents and whether the value was to be determined in present case with reference to S. 3(c) of Central Excise Act, 1944 and as such R. 96-ZZ of Central Excise Rules 1944 did not apply. PLJ 2005 SC 753
Central excise duty, recovery of--Levy of such duty--Bill of entry was filed on 9.6.1996 and Notification dated 13.6.1996 was made applicable with effect from 1.7.1996--Validity--Said Notification was never withdrawn--In view of such admission, date of bill of entry would be immaterial--Exemption having been granted by means of S.R.O. 457(1)/96 dated 13.6.1996 which was intact same could be availed by the respondents--Other duties/taxes which were not included in the S.R.O. in question regarding which no exemption was granted could be recovered from the respondents in accordance with law--Judgment of High Court was upheld--Appeal dismissed. PLJ 2005 SC 753
30A. Date of determination of rate of duty for clearance through the Customs Computerized System.- Subject to the provisions of section 155A, the rate of duty applicable to any imported or exported goods if cleared through the Customs Computerized System, shall be the rate of duty in force on;-
(a) the date of payment of duty;
(b) in case the goods are not chargeable to duty, the date on which the goods declaration is filed with Customs .
Provided that where a goods declaration has been filed in advance of the arrival of the conveyance by which the goods have been imported, the relevant date for the purposes of this section shall be the date on which the manifest of the conveyance is filed at the customs-station of first entry:
Provided further that the Federal Government may, by notification in the official Gazette, specify any other date for the determination of rate of duty in respect of any goods or class of goods.
31. Date for determination of rate of [duty on goods exported].- .- The rate and amount of duty applicable to any goods exported shall be the rate and amount chargeable at the time of the delivery of the bill of export or goods declaration under section 131:
Provided that where the export of any goods is permitted without a bill of export or goods declaration or in anticipation of the delivery of such a bill or declaration, the rate and amount of duty applicable shall be the rate and amount chargeable on the date on which loading of the goods on the outgoing conveyance commences:
Provided further that the Federal Government may, by notification in the official Gazette, for any goods or class of goods, specify any other date for determination of the rate of duty.
Court Decision
Importer claiming exemption from payment of customs duty
in terms of S.R.O. No. 212(1)/91 and No. 213(1)/91, dated 14.3.1991
which allowed exemption from customs duty and Sales Tax to machinery imported
and letter of credit opened upto 30.6.1996 for installing industry in special
industrial zones-:Subsequently by another S.R.O. dated 30.1.1991, S.R.O. No.
70(1)/95 was amended whereby crucial date for opening of Letter of credit was
substituted to be 31.1.1996--Later on vide S.R.O. No: 434 (1)/96, dated
30.6.1996, both S.R.Os. dated 14.3.1991 were rescinded--Whether Importer could
claim exemption in circumstances--Question of--Notifications/S.R.Os. were
issued by competent authority in exercise of powers conferred upon them under
Customs Act or Sales Tax for purpose of granting exemption in Customs duty and
other Taxes--Because there had not been any executive commitment by Govt. of
Pakistan or its subordinate functionary, therefore, after rescinding
Notification, no benefit therefrom can be claimed by petitioner on pretext that
in view of incentives provided by Govt. letter of credit was opened on
30.5.1996--Exemption of 100% custom duty and other sales Tax was available to
importers establishing industry in special zones provided letter of credit is
opened upto 30.1.1995--Amendment had been introduced in original S.R.O. about
four months before opening of letter of credit by petitioner--Held: Petitioner
could not get benefit of exemption of customs duty and sales Tax because letter
of credit was opened by then on 30.5.1996. PLJ
1998
31A. Effective rate of duty.- (1) Notwithstanding anything contained in any other law for the time being in force or any decision of any Court, for the purposes of section 30,30A and 31, the rate of duty applicable to any goods shall include any amount of duty imposed under section 18. and the amount of duty that may have become payable in consequence of the withdrawal of the whole or any part of the exemption or concession from duty whether before or after the conclusion of a contract or agreement for the sale of such goods or opening of a letter of credit in respect thereof.
(2) For the purpose of determining the value of any imported or exported goods, the rate of exchange at which any foreign currency is to be converted into Pakistan currency shall be the rate of exchange in force on the date immediately preceding the relevant date referred to in sections 30, 30A or 31.
Court Decision
Grant of Concession to Mill owners for charging rate of octroi on cotton—Withdrawal of such concession at any time even during currency of period for which same was earlier granted through notification, assailed--Principle of Promissory estoppel--Applicability--Nothing in Balochistan Local Government Ordinance, 1979 or Balochistan Local Government (Imposition of Taxes) Rules empowered Provincial Government to withdraw concession already made through notification dated 2.8.1995 for a fixed period of five years for charging of octroi at specified rate per bale, therefore, principle of promissory estoppel was applicable with full force to cases in question--Judgments of High Court against petitioners was set aside and notification dated 11.11.1997 was declared to be without lawful authority as a consequence of which octroi tax would be charged in accordance with notification where under concession was granted to petitioners. PLJ 2004 SC 309
Exemption from payment of statuary customs duty on import of machinery--Entitlement--Appellants entered into contract with foreign machinery supplier on 6th September 1983 but he took no effective steps till 14.6.1984 when earlier SRO 700(1)/80 dated 26.6.1980 was superseded by SRO 500(1)/84, therefore, no concrete steps were taken to implement the contract in question--Government thus, could not be compelled to extend benefit of SRO 700(1)/80 to appellant–Government could not be bound down for all the times to come not to modify, withdraw or promulgate SRO’s imposing tax only for the reason that one of the party had entered into contract for the supply of foreign machinery in those cases where neither Federal Government was a party nor in superseded SRO it was mentioned that the same would remain operative till particular period--Contract for supply of machinery having been executed between private parties, same would not bind the government not to supersede the SRO because of the fact that Government was not a party to contract--Appellant however, can get benefit of non-payment of additional duty of ad-veloram if it can show before custom authorities to whom case had been remanded by High Court that machinery so imported by appellant was not being manufactured in Pakistan at the relevant time. PLJ 2001 SC 130
Such scheme known as “Non-Repatriable Investment Scheme’ enabled Pakistani’s living abroad to import new as well as second hand machinery from their own resources of foreign exchange--Goods imported by petitioner were converted by Table III of Finance Act 1999 which provided Zero per cent duty on those goods--On arrival of machinery in Pakistan, petitioner filed Bill of Entry on 7.3.2000 claiming exemption from payment of duties under table III of Finance Act, 1999, however, Government on the very date viz. 7.3.2000 had issued notification whereby table III was amended and entries relating to machinery imported by petitioner were omitted, thus, custom duties and other taxes became payable on imported goods--Validity--Petitioner’s contention that duty of which exemption was claimed having been levied by Finance Act, 1999 was not a duty of Customs under S. 18 of Customs Act, 1969 and as such S. 31-A, thereof was not applicable was devoid of merit--Provision of S. 18 of Customs Act, 1969 would show that the Act applies not only to duties levied under the Act but also to duties which have been levied by any other law for the time being in force which in present case would be Finance Act, 1999--Provision of S. 31-A Customs Act, 1969 applies not with standing anything contained in any other law for the time being in force and provides for payment of duty notwithstanding subsequent withdrawal of any Notification granting exemption--S. 31-A of Customs Act 1969, destroys vested right which had accrued to a person on account of his entry into a contract or opening letter of credit--Goods of petitioner were although, no liable to pay customs duty when he entered into contract but exemption having been withdrawn before goods could be cleared, petitioner could not avail of the same. PLJ 2000 Lahore 2033
Imposition of regulatory duty--Section 31-A, Customs Act, 1969, provides that for purposes of Sections 30 and 31 of Act, rate of duty applicable to goods includes amount of duty imposed under Section 18 of Act, Section 2 of Finance Ordinance, 1982 and Section 5 of Finance Act, 1985, in addition to amount of customs duty that may become payable as a consequence of withdrawal of whole or any part of exemption or concession from duty whether before or after conclusion of contract or agreement for sale of goods or opening of letters of credit in respect of contract notwithstanding anything contained in any other law for time being enforced , or judgment of any Court--It is, therefore, quite dear’ that under this section duties whether they are levied under Section 18(1) or 18(2) of Act are to be paid as provided under Section 30 notwithstanding any other law or judgment of Court--Imposition of regulatory duty under Section 18(2) of Act, otherwise could not be objected to in view of provisions contained in Section 31-A of Act and same was recoverable on goods imported into Pakistan in accordance with provisions of Section 30 of Act notwithstanding fact that notification issued under Section 19 of Act exempting such goods either wholly or partially from payment of customs duty leviable under Section 18(1) of Act, was holding field. PLJ 2000 SC 109
Ss.19 & 31-A read with Finance Ordinance,
1982, Section 2, and Finance Act, 1985, Section 5--Additional Customs duties--Levy of--Exemption
from--Claim of--Contention that all additional duties having
been incorporated in Section 31-A of Customs Act, resort to Section 2 of Finance
Ordinance, 1982 and Section 5 of Finance Act, 1985 for purpose of granting
exemption, need not be made--Section 31-A is not charging section--Additional
customs duty and Iqra surcharge are to be calculated in accordance with
provisions of Section 2 of Ordinance 1982 and Section 5 of Act, 1985--Held: Any
exemption granted under Section 19 of Customs Act, will not be attracted while
charging duty under Section 2 of Finance Ordinance 1982 and Section 5 of
Finance Act, 1985--Held further: Petitioner is not entitled to relief claimed
by it. 1991 C L C 390 = PLJ 1991
32. False statement, error, etc.- (1) 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, 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 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.
(4) The appropriate officer, after considering the representation, if any, of such person 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.
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;
(c) in a case where duty has been erroneously refunded, the date of its refund;
(d) in any other case, the date of payment of duty or charge.
Court Decision
Scope:-- Wrong declaration made by petitioners in connection with matter of Custom. which was found to be untrue in material particulars--Liability for penal action in terms of S. 32(1) of Customs Act, 1969--Where any person in connection with any matters of customs makes any declaration or statement which is untrue in any material particulars, be would be guilty of offence under S. 32(1) of Customs Act, 1969--No reference is made in S. 32, Customs Act, 1969 to S. 79, Customs Act or that such declaration or statement was made in bill of entry for an untrue declaration on statement to come within mischief of S. ‘32(1) Customs Act, the same should be untrue in any material particulars and that statement or declaration in question, was made iii connection with any matter of customs—Words “any matter of customs” are not restricted to bill of entry--Goods in question, having arrived at border were meant to be cleared at Quetta Dry Port--High Court had rightly maintained that concerned Authority at the border where declaration was made was entitled to examine whether goods correspond to declaration made so that no change in goods takes place from starting point at border to Dry Port--Such statement or declaration at the starting point, therefore, related to matter of Customs and attracted penal provisions of S. 32(1), of Customs Act, in case the same was untrue in any material particulars--High Court, thus, had correctly interpreted S. 32(1) of Customs Act, therefore, no interference was warranted in the same--Leave to appeal was refused in circumstances. PLJ 2000 SC 537
Applicability--Provision as contained in Ss. 32 and 181 of Customs Act 1969, would not be applicable in present case which classic example of forgery and fraud committed by respondent knowingly and deliberately for evasion of customs duty--Customs Authorities have proved and established that fraud practiced upon them was intentional and deliberate as fake and forged invoices were prepared and thus, such forgery cannot be equated with that of bona fide mistake or an inadvertent omission--Appellant was, thus not entitled to get any relief in view of his fraudulent conduct. PLJ 2005 SC 1166 Order passed by Additional Collector Customs whereby he had ordered confiscation of respondents, consignment was neither laconic nor non-speaking in as much as every aspect of controversy had been dilated upon and decided in comprehensive manner by giving cogent reasons wherein all contentions raised before him were examined and decided elaborately and comprehensively--Provisions as contained in SRO dated 15.6.2002, cannot be made applicable in view of chequered history of case and naked fraud committed by respondent option to pay fine in lieu of confiscation for such consignments, which were brought by playing fraud upon Customs Authorities which has been proved and established to the hilt, cannot be given to respondent orders passed by Customs, Excise and Sales Tax Appellate Tribunal and judgment passed by High Court, giving option respondent to pay fine in lieu of confiscation of consignment were set aside while that of Additional Collector Customs relating to confiscation of consignment was maintained. PLJ 2005 SC 1166 PLD 1959 SC 364 ref.
Provisions of S. 32 of Customs Act, 1969 and 36 of Sales Tax Act are identical in nature :-- Counsel for appellant contend with reference to P.T.C.L. 2002 page 1 that impugned show-cause notice did not contain specific allegation of any collusion or deliberate act on part of appellant therefore its case fall under sub-section (2) of S. 36 of Sales-Tax Act for which a period of limitation provided for issuance of show-cause notice is only three years, thus show-cause notice issued on specified was patently barred by time--Held : Section 32 sub-section (1) & (2) of Customs Act carry different limitation periods for issuance of show-cause notice as in Sales Tax Act, 1991--Therefore it is evident that provisions of S. 32 of Customs Act, 1969 and 36 of Sales Tax Act are identical in nature and object of specifying two different sets of circumstances is also identical--Case law PTCL 2002 (page-1) referred by learned counsel for appellant is fully applicable in instant case as well--Appeal allowed and impugned, order set aside--Resultantly show-cause notice is declared to be illegal being barred by time. PLJ 2003-Lahore 950 (DB)
Trade frauds and
misuse of the export rebate :---Burden of proof---Incumbent upon the accused to
specifically and pointedly meet at least such allegations as were expressly
directed against him---Accused was also required, in line with the principle
provided in Art. 122, Qanun-e-Shahadat to disclose such facts pertaining to the
transactions, as happened to be “specially” in his knowledge. P L D 1999 S. C. 1111
Pilferage of goods to
foreign country--Appellants plea for concession of pre-arrest
bail--Petitioners were neither named in F.I.R. nor even tentative assessment of
record showed any nexus of petitioners with illegal activities committed at
relevant place--Petitioners have been involved in present case on basis of mere
inferences and their involvement in present case requires further
proof--Petitioners as per record, duly participated in investigation and
associated with investigating officer and their detailed--Statement recorded by
such officer, prima facie, do not show their involvement at present stage of
investigation--Case against petitioners being fit case for grant of pre-arrest
bail, ad-interim bail already granted to them would stand confirmed.
PLJ 2005 Cr.C. (
Amendment in original Show Cause Notice:-- Bill
off entry with other documents filed with Assistant Collector customs and
deposited customs duty--Notice issued to petitioner for payment on ground of
under valuation--Corrigendum issued by department for replacing words under valuation
with words mis-calculation--Contention of petitioner that corrigendum
completely set up new case rejected by department as it was observed during
audit that petitioner had imported 72000 cartridges while figure of 27000 was
taken while calculating duty and taxes--Whether corrigendum was new notice de
novo and barred by time--Question of law--It is provided under sub-clause 3 of
S. 32 that where by reasons of any inadvertence, error or misconstruction, any
duty or charge has not been levied or has been short levied or has been
erroneously refunded, person liable to pay any amount on that account shall be
served with notice within six months of relevant date requiring him to show why
he should not pay amount specified in notice--Admittedly petitioner imported
72000 cartridges and paid duties and taxes on 27000 catridges--Observation of
department was that this error was not deliberate, therefore, they recitifed
original Show Cause Notice by substituting mis-declaration with
mis-calculation--Held: Corrigendum could not be construed as notice de
nova-Held further Department was well within its right to recitfy and amend its
original notice--Petition dismissed. PLJ 2002
Question of fact:-- Notice, issued to respondents to pay short assessed duty within seven days of notice were declared to be void and illegal by the High Court--Validity--Leave to appeal was granted to consider contention of petitioners that notices of specified date served on respondents having been declared by the High Court to be not in accordance with S. 32(2)(3) of Customs Act 1969, the court should have either remanded the case to customs Authorities or left it upon to them to proceed against respondents in accordance with law instead of merely declaring such notices to be without lawful authority and of no legal effect and whether goods cleared by respondents by declaring them as raw material, were in fact raw material or a sub-component, was question of fact which could only be determined by customs authorities and High Court could not in exercise of jurisdiction under Art. 199 of the Constitution, record binding finding in that behalf. PLJ 2001 SC 658
Liability to pay short assessed duty--Declarations/statements of respondents were alleged to be un-true, collusive or based on inadvertence--Onus to prove such allegations--Validity of show-cause notices issued to respondents--Onus to prove allegations of untrue declaration statements on basis of collusiveness or inadvertance lay on appellants--Where such document by reason of collusion was made so as to avoid duty or the same was short levied or had been erroneously refunded, person liable to pay amount would be served with show-cause notice in terms of S. 32, Customs Act 1969, within three years of relevant date calling upon him to show cause as to why he should not pay the specified amount and if by reason of inadvertance, error or misconstruction any duty had not been levied or short levied or erroneously refunded, person liable to pay such duty would be served with show-cause notice within six months of relevant date as to why he should not pay such amount--No such notice, in terms of S. 32 of Customs Act 1969, were given to respondents to show cause as to why they should not pay defaulted amount, therefore, demand notices in absence of show-cause notices were without lawful foundation, as much as, anything required by law to be done in a certain manner must be done in the same manner as prescribed by law or not at all--Survey report and final certificate would indicate that customs staff itself either collusively or inadvertantly short levied the duty for which specific notice under S. 32 of Customs Act, 1969 had to be served on respondents within specified time but no such notice was served upon respondents, therefore, in A absence of statutory notice demand notice, were vague and not in conformity with law, therefore, the same were of no legal effect--High Court having taken such view, no legal infirmity in its judgment was pointed out so as to warrant interference in the same. PLJ 2001 SC 658
Time and manner of recovery in normal course of conduct--Provision
of S. 6 of Sales Tax Act 1990, provide only for time and manner of recovery, in
normal course of conduct and such mode of recovery has been made similar to
that of recovery of customs duty--Where, however, recovery of sales tax was not
normal but under abnormal and specific circumstances given in S. 36, Sales Tax
Act 1990, same would be recovered under that section alone and not under
Section 6 of Sales Tax Act 1990 or under Section 32 of Customs Act
1969--Recovery in question having been made within period of limitation in
terms of S. 36 Sales Tax Act 1969, petitioner could not claim refund thereof,
in constitutional petition. PLJ 2000
Bail:--Previous bail application of the accused was dismissed as withdrawn by High Court with the permission to file fresh application after final challan was submitted which was likely to be submitted within two to three weeks--Such order did not give the impression and the sense as drawn by the counsel of the accused in the fresh bail application and the same could not be treated a fresh ground to move the present application--Entertaining the present application meant to modify the previous order without any convincing ground and such act of the Court could be the worst precedent--Move of the accused’s counsel in filing the present bail application which was merely a reproduction of the previous application in verbatim, in the circumstances, had done nothing except to shock the feelings of the Court--Moving an application with any such background could never be appreciated in any manner on any ground and under any impression, expectation or circumstances., whatsoever they might be, particularly at the cost of the Court’s integrity, respect and honour--Bail application was dismissed in circumstances. PLJ 1996 Cr.C. (Karachi) 1953 Neither any recovery was effected from petitioner nor there is any evidence that he procured heroin nor there is any evidence to indicate that he passed on heroin to his co - accused - petitioner is in custody since 27/5/1997 and is not required for purpose of further investigation - In these circumstances this application is allowed and petitioner is allowed bail provided he furnishes bail bonds in sum of Rs. One Lac with two sureties each in like amount to satisfaction of Trial Court - Bail allowed. 1999 P.Cr.L.J 348
Case against customs officials--Customs Authorities Investigating case against such
officials were likely to mould investigation in their favour just to oust
themselves from present embarrassing situation and in such state of affairs
their effort to shift responsibility to others cannot be taken out of
consideration--Entrustment of case to some other agency for investigation was
recommended by High Court so as to meet ends of justice and fair
play. PLJ 2005 Cr.C. (
[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 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 customs 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.
32B. Compounding of offence.- Notwithstanding anything contained in section 32 and 32A or any other provision of this Act, where any person has committed a duty or tax fraud, the Collector may, with the prior approval of the Board, either before or after the institution of any proceedings for recovery of duty or tax, compound the offence if such person pays the amount of duty or tax due along with penalty as is determined udner the provisions of this Act.
33. Refund to be claimed within one year.- (1) No refund of any customs-duties or charges claimed to have been paid or over-paid through inadvertence, error or misconstruction shall be allowed, unless such claim is made within one year of the date of payment.
(2) In the case of provisional payments made under section 81, the said period of one year shall be reckoned from the date of the adjustment of duty after its final assessment.
Court Decision
Refund of freight with regard to imported vehicles refused to petitioner by Collector Appeal on the ground that appeal had been filed beyond period of limitation--Petitioner_ had received impugned order of Assistant Collector dated 26.6.1988 on 20.7.1988 and appeal was filed with one month, therefore, same was not time barred--Case was remanded to collector appeal for decision afresh on merits in accordance with law- PLJ 2002 Lahore 1927
Maintainability of writ petition--Petitioner
filed appeal himself before Collector Appeals who dismissed the same--In this
view of matter order cannot be said to be without lawful authority--On well
known principle mere erroneous exercise of jurisdiction does not render order
passed by authority/Court of competent jurisdiction to be illegal and without
lawful authority so as to be amenable to be questioned in Constitutional
jurisdiction of High Court under Art. 199 of Constitution--Petitioners, case
does not fall in exceptional circumstances--It is admitted fact that petitioner
had alternate remedy to agitate matter before Federal Govt.--Held: Writ
petition was not maintainable in presence of alternate remedy unless and until
exceptional circumstances existed in case to exercise extraordinary
jurisdiction--Petition dismissed. PLJ 2001
34. Power to give credit for, and keep account-current of duties and charges.- An officer of customs, not below the rank of Assistant Collector or Deputy Collector of customs may, in the case of any mercantile firm or public body, if he so thinks fit, instead of requiring payment of customs duties or charges as and when they become due, keep with such firm or body an account-current of such duties and charges, which account shall be settled at intervals of not exceeding one month, and such firm or body shall make a deposit or furnish a security sufficient in the opinion of that officer to cover the amount which may at any time be payable by it in respect of such duties or charges.
CHAPTER – VI
DRAWBACK
35. Drawback of the export on imported goods.- Subject to the subsequent provisions of this Chapter and the rules, when any goods, capable of being easily identified, which have been imported into Pakistan and upon which customs-duties have been paid on importation, are exported to any place outside Pakistan or as provisions or stores for use on board a conveyance proceeding to a foreign territory, seven-eight of such duties shall be repaid as drawback, subject to the following conditions, namely:-
(1) the goods are identified to the satisfaction of an officer of customs not below the rank of Assistant Collector or Deputy Collector of Customs at the customs-station, to be the same as had been imported, and
(2) the goods are entered for export within two years of the date of their importation, as shown by the records of the custom-house or if such time is extended by the Board or the Collector of Customs for sufficient cause within such extended time:
Provided that the Collector of Customs shall not extend the time beyond three years of the importation of such goods.
Explanation.- For the purposes of this section, the goods shall be deemed to have been entered for export on the date on which the bill of export is delivered to the appropriate officer under section 131.
36. Drawback on goods taken into use between importation and exportation.- Notwithstanding anything contained in section 35, the repayment of duty as drawback in respect of goods which have been taken into use between their importation and subsequent exportation shall be made in accordance with the provisions of the rules made in that behalf.
37. Drawback on goods used in the manufacture of goods which are exported.- Where it appears to the Board that in respect of goods of any class or description manufactured in Pakistan and exported to any place outside Pakistan, a drawback of customs-duties should be allowed on any imported goods of a class or description used in the manufacture of such exported goods, the Board may, by notification in the official Gazette, direct that drawback shall be allowed in respect of such imported goods to such extent and subject to such condition as may be provided in the rules.
38. Power to declare what goods are identifiable and to prohibit draw-back in case of specified foreign territory.- (1) The Board may, from time to time, by notification in the official Gazette, declare what goods shall, for the purposes of this Chapter, be deemed to be not capable of being easily identified.
(2) The Federal Government may, from time to time, by notification in the official Gazette, prohibit the payment of drawback upon the exportation of goods or any specified goods or class of goods to any specified foreign port or territory.
39. When no drawback allowed.- Notwithstanding anything hereinbefore contained, no drawback shall be allowed-
(a) upon goods which are required to be included in the export manifest
and are not so included, or
(b) when the claim is for drawback amounting, in respect of any single shipment, to less than hundred rupees, or
(c) unless the claim for drawback has been made and established at the time of export.
40. Time of payment of drawback.- No such payment of
drawback shall be made until the vessel carrying the goods has put out to sea
or other conveyance has left
41. Declaration by parties claiming drawback.- Every person, or his duly authorized agent, claiming drawback on any goods duly exported, shall make and subscribe a declaration that such goods have been actually exported and have not been relanded and are not intended to be relanded at any place in Pakistan and that such person was at the time of entry outwards and export and continues to be entitled to drawback thereon.
CHAPTER – VII
ARRIVAL AND DEPARTURE OF CONVEYANCE
42. Arrival of conveyance.- (1) The person-in-charge of a conveyance entering Pakistan from any place outside Pakistan shall not cause or permit the conveyance to call or to land in the first instance at any place other than a customs-station.
(2) The provisions of sub-section (1) shall not apply in relation to any conveyance which is compelled by accident, stress of weather or other unavoidable cause to call, or land at a place other than a customs-station but the person-in-charge of any such conveyance-
(a) shall immediately report its arrival to the nearest officer of customs or the officer-in-charge of the police-station and shall on demand produce before him either the cargo book or the manifest or the log-book belonging to such conveyance;
(b) shall not, without the consent of any such officer, permit any goods carried in the conveyance to be unloaded from, or any of the crew or passengers to depart from its vicinity;
(c) shall comply with any direction given by such officer with respect ot any such goods; and no passenger or member of the crew shall, without the consent of any such officer, leave the vicinity of the conveyance:
Provided that nothing in this section shall prohibit the departure of any passenger of member of the crew from the vicinity of, or the removal of goods from, the conveyance where such departure or removal is necessary for reasons of health, safety or the preservation of life or property.
[Provided further that the person in charge of a conveyance, that is en route to Pakistan from a point outside Pakistan shall, unless otherwise approved by the Collector,-
(a) give to the Customs, in such form and manner (for example, in an electronic form and manner) as may be approved in writing by the Collector (either generally or for a particular case or class of cases), such advance notice as may be prescribed for any or all of the following matters, namely:-
(i) the impending arrival of the conveyance;
(iii) its voyage;
(iii) its crew;
(iv) its passengers;
(v) its cargo for discharge within
(vi) its commercial cargo not intended for
discharge wtihin
(vii) the Customs station at which the conveyance will arrive; and
(b) or
arriving within
[(3) The owner or operator of the conveyance, referred to in sub-section (1), or an agent of the owner, may provide the information referred to in paragraph (a) of that sub-section to the Customs on behalf of the person in charge of the conveyance:
Provided that the provisions of sub-section (1) and (2) shall apply to,-
(a) a
conveyance that has arrived in
(b) a
conveyance departing from
(c) a
conveyance that is within
(d) any other conveyance that is within Pakistan and that a Customs officer has reasonable cause to suspect has been, or is about to be, involved in the commission of an offence under this Act or the importation or exportation of any dutiable, prohibited, restricted, notified or confiscated goods.
(4) The person in charge of, the owner of goods, any member of the crew of, any passenger on, a conveyance to which this sub-section applies, shall,-
(a) answer any question asked by a customs officer under this Act relating to the conveyance and its voyage and any persons or goods that are or have been carried by the conveyance; and
(b) produce forthwith, at the request of any Customs officer, any documents within that person’s possession or control relating to any of those matter.]
43. Delivery of import manifest in respect of a vessel.- (1) The Board may, by notification in the official Gazette, fix a place beyond which no vessel arriving shall pass until an import manifest has been delivered to Customs or other person duly authorized to receive in such form, manner and time as the Board may prescribe.
(1) On receipt of such import manifest the vessel may proceed to come beyond the fixed place. No pilot shall bring a vessel into customs-port without having been so authorized by Customs.
(3) If any vessel arrives at any customs-port in which a place has not been so fixed, master of such vessel shall, within twenty-four hours after arrival of such vessel, deliver an import manifest to Customs in such form and manner as the Board may prescribe.
(4) Notwithstanding anything contained in sub-section (3), an import manifest may be delivered in anticipation of the arrival of a vessel.
44. Delivery of import manifest in respect of a conveyance other than a vessel.- The person-in-charge of a conveyance other than a vessel shall, within twenty-four hours after arrival thereof at a land customs-station or customs-airport, as the case may be, deliver an import manifest to the appropriate officer.
45. Signature and contents of import manifest and amendment thereof.- (1) Every manifest delivered under section 43 or section 44 shall be signed by the person-in-charge of the conveyance or his duly authorized agent and shall specify all goods imported in such conveyance showing separately all goods, if any, intended to be landed, transshipped, transited or taken into another customs-station or to a destination outside Pakistan and stores intended for consumption at the customs-station or on the outward voyage or journey, and shall be made out in such form and contain such further particulars as the Board may from time to time direct:
Provided that the Collector of Customs, through a special order, on such terms and conditions as he may deem fit to impose, may allow acceptance of digital signatures instead of manual ones, on electronically transmitted import manifest.
(2) The 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 or by making an amendment electronically and shall levy thereon such fees as the Board from time to time directs.
(3) Except as provided in sub-section (2), no import manifest shall be amended.
46. Duty of person receiving import manifest.- The person receiving an import manifest under section 43 or section 44 shall countersign the same and enter thereon such particulars as the Collector of Customs from time to time directs:
Provided that no countersignatures shall be required in respect of an import manifest filed electronically.
47. Bulk not to be broken until manifest, etc., delivered and vessel entered inwards.- No vessel arriving in any customs-port shall be allowed to break bulk, until an import manifest has been delivered as hereinbefore provided or until copy of such manifest together with an application for entry of such vessel inwards, has been presented by the master to the appropriate officer and an order has been given thereon for such entry.
48. Power to require production of documents and ask questions.- (1) When an import manifest is presented, the person-in-charge of a conveyance or his duly authorized agent, if required so to do by the appropriate officer, shall deliver to the
officer the bill of lading or the bill of freight or a copy thereof for every part of cargo or goods laden on board, journey log-book and any port clearance, docket or other paper granted in respect of such conveyance at the place from which it is stated to have come, and shall answer all such questions relating to the conveyance, goods, crew and voyage or journey as are put to him by such officer.
(2) The appropriate officer may, if any requisition or question made or put by him under this section is not complied with or answered, refuse to grant permission to a vessel to break bulk and to other conveyance to land the imported goods, as the case may be.
49. Special pass for breaking bulk.- Notwithstanding anything contained in section 47 and subject to rules, the appropriate officer may grant, prior to receipt of the import manifest and the entry inwards of a vessel, a special pass permitting bulk to be broken.
50. Order for entry out-wards or loading of goods to be obtained before export goods are loaded.- (1) No goods other than passengers’ baggage and mail bags shall be loaded on a conveyance until-
(a) in the case of a vessel, a written application for entry of such vessel outwards, subscribed by the master of such vessel, has been made to the appropriate officer and an order has been given thereon for such entry; and
(b) in the case of any other conveyance, a written application for authority to load the goods subscribed by the person-in-charge of the conveyance has been made to the appropriate officer and an order has been given thereon authorizing the loading.
(2) Every application made under this section shall specify the particulars as prescribed by the Board.
51. No vessel to depart without port clearance.- (1) No vessel, whether laden or in ballast, shall depart from any customs-port until a port-clearance has been granted by the appropriate officer.
(2) No pilot shall take charge of any vessel proceeding to sea, unless the master of such vessel produces a port-clearance.
Court Decision
Exemption from customs duty and sales tax on basis of principle of
legitimate expectations--Entitlement--Petitioner’s claim that on basis of principle
of legitimate expectation, exemption once granted could not be rescinded in as
much as, contract for import of machinery had been executed during currency of
exemption period--Such claim of petitioner was not tenable for the reason that
notification on basis of which petitioner was claiming exemption itself
stipulated that such concession would be available only to those goods which
were imported during period specified therein, and that S. 31-A of Customs Act
clearly lays down that amount of duty would be payable irrespective of the fact
whether withdrawal had taken place before or after the creation of contract for
sale of goods or opening of letter of credit--Levy and charge ability of duty,
however, has no nexus with the day on which goods were to be
imported--Petitioner was, thus, not entitled to exemption from customs duty. PLJ 2000
52. No conveyance other than vessel to leave without permission.- No conveyance other than a vessel shall depart from a land customs-station or customs-airport until a written permission to that effect has been granted by the appropriate officer.
53. Application for port clearance of vessels.- (1) Every application for port-clearance shall be made by the master of a vessel at least twenty-four hours before the intended departure of the vessel:
Provided that the Collector of Customs or an officer authorized by him in this behalf may for special reasons to be recorded allow a shorter period for the delivery of the said application.
(2) The master shall, at the time of applying for port clearance,-
(a) deliver to the appropriate officer an export manifest in duplicate in such form as may from time to time be prescribed by the Board signed by such master specifying all goods to be
exported in the vessel and showing separately all goods and stores entered in the import manifest, and not landed or consumed on board or transshipped :
Provided that the Collector of Customs, through a special or general order, on such terms and conditions as he may deem fit to impose, may allow acceptance of digital signatures, in lieu of the manual ones, on electronically transmitted export manifest.
(b) deliver to the appropriate officer such goods declaration or other documents as such officer acting under the general instructions of the Collector of Customs requires; and
(c) answer such questions respecting the departure and destination of the vessel as are put to him by the appropriate officer.
(3) The provisions of section 45 relating to the amendment of import manifests shall, mutatis mutandis, apply also to export manifests delivered under this section or under section 54.
54. Conveyances other than vessels to deliver documents and answer questions before departure.- The person-in-charge of a conveyance other than a vessel or his duly authorized agent shall -
(a) deliver to the appropriate officer an export manifest in duplicate in such form as may from time to time be prescribed by the Board signed by the person-in-charge or the agent specifying all goods or
stores entered in the import manifest, and not landed or transshipped or consumed on board the conveyance;
(a) deliver to the appropriate officer such bills of export or goods declaration or other documents as such officer acting under the general instructions of the Collector of Customs requires; and
(b) answer such questions respecting the departure and destination of the conveyance as are put to him by the appropriate officer.
55. Power to refuse port clearance to vessels or permission for departure to other conveyance.- (1) The appropriate officer may refuse to give port-clearance to a vessel or permission for departure to any other conveyance until-
(a) the provisions of section 53 or section 54, as the case may be, have been complied with;
(b) all station or port dues and other charges and penalties payable in respect of such vessel, or by the owner or master thereof, or in respect of such other conveyance by the owner or person-in-charge thereof, and all taxes, duties and other dues payable in respect of any goods loaded therein, have been duly paid, or their payment secured by such guarantee, or by such deposit at such rate, as such officer directs;
(c) where any export goods have been loaded without payment or securing payment as aforesaid of all taxes, duties and other dues
payable in respect thereof or in contravention of any provision of this Act or the rules or of any other law for the time being in force relating to export of goods.
(i) such goods have been unloaded, or
(ii) where the appropriate officer is satisfied that it is not practicable to unload such goods, the person-in-charge or his duly authorized agent has given an undertaking secured by such guarantee or deposit of such amount as the appropriate officer may direct, for bringing back the goods to Pakistan;
(d) the agent, if any, delivers to the appropriate officer a declaration in writing to the effect that he will be liable for any penalty imposed under clause 24 of the Table under sub-section (1) of section 156 and furnishes security for the discharge of the same;
(a) the agent, if any, delivers to the appropriate officer a declaration in writing to the effect that such agent is answerable for the discharge of all claims for damage or short delivery which may be established by the owner of any goods comprised in the import cargo in respect of such goods.
(2) An agent delivering a declaration under clause (d) of sub-section (1) shall be liable to all penalties which might be imposed on the person-in-charge of such conveyance under clause 24 of the Table under sub-section (1) of section 156 and an agent delivering a declaration under clause (e) of sub-section (1) shall be bound to discharge all claims referred to in such declaration.
56. Grant of port clearance or permission for departure.- When the appropriate officer is satisfied that the provisions of this Chapter relating to the departure of conveyance have been duly complied with, he shall grant a port-clearance to the master of the vessel or a written permission for departure to the person-in-charge of any other conveyance and shall return at the same time to such master or person-in-charge one copy of the manifest duly countersigned by the appropriate officer.
57. Grant of port clearance or permission for departure on security of agent.- Notwithstanding anything contained in section 55 or section 56 and subject to rules, the appropriate officer may grant a port-clearance in respect of a vessel or permission for departure in respect of any other conveyance, if the agent furnishes such security as such officer deems sufficient for duly delivering within ten days from the date of such grant, the export manifest and other documents specified in section 53, or section 54, as the case may be.
58. Power to cancel port-clearance or permission for departure. (1) For the purpose of securing compliance with any provision of this Act or the rules or any other law, the appropriate officer may at any time, while the vessel is within the limits of any port or any other conveyance is within the limits of any station or airport or within Pakistan territory, demand the return of port-clearance or the written permission for departure, as the case may be.
(2) Any such demand may be made in writing or may be communicated to the person-in charge of the conveyance by wireless, and, if made in writing it may be served, by delivery to the person in-charge or his agent personally; or
(a) by leaving it at the last known place of abode of such person or agent; or
(b) by leaving it on board the conveyance with the person appearing to be in-charge or command thereof.
(3) Where a demand for the return of a port-clearance or of a permission for departure is made as aforesaid, the port-clearance or permission shall forthwith become void.
59. Exemption of certain classes of conveyance from certain provisions of this Chapter.- (1) The provisions of section 44, 52, and 54 shall not apply to a conveyance, other than a vessel which carries no goods other than the baggage of its occupants.
(2) The Federal Government may, by notification in the official Gazette, exempt conveyances belonging to Government or any foreign Government from all or any of the provisions of this Chapter.
CHAPTER VIII
GENERAL PROVISIONS AFFECTING CONVEYANCES AT CUSTOMS-STATIONS
60. Power to depute officers of customs to board conveyances.- At any time while a conveyance is in a customs-station or is proceeding towards such station, the appropriate officer may depute one or more officers of customs to board the conveyance, and every officer so deputed shall remain on board such conveyance for such time as the appropriate officer may consider necessary.
61. Officer to be received and accommodation to be provided.- Whenever an officer of customs is so deputed to be on board any conveyance, the person-in-charge shall be bound to receive him on board and provide him with suitable accommodation and adequate quantity of fresh water.
62. Officer’s power of access, etc. - (1) Every officer deputed as aforesaid shall have free access to every part of the conveyance and may-
(a) cause any goods to be marked before they are unloaded from the conveyance;
(b) lock up, seal, mark or otherwise secure any goods carried in the conveyance or any place or container in which they are carried; or
(c) fasten down any hatchway or entrance to the hold.
(2) If any box, place or closed receptacle in any such conveyance be locked, and the key be withheld, such officer shall report the same to the appropriate officer, who may thereupon issue to the officer on board the conveyance, or to any other officer under his authority, a written order for search.
(3) On production of such order, the officer empowered thereunder may require that any such box, place or closed receptacle be opened in his presence; and if it be not opened upon his requisition, he may break open the same.
63. Sealing of conveyance.- Conveyances carrying
transit goods for destinations outside
65. Goods not to be loaded or unloaded or passed on certain days or at certain times.- Except with the permission in writing of the appropriate officer and on payment of such fees as may be prescribed by the Board no goods, other than passengers’ baggage or mail bags, shall in any customs-port be discharged, or be shipped or water-borne to be shipped or shall be loaded or unloaded or passed at any land customs-station or customs-airport-
(a) on any public holiday within the meaning of section 25 of the Negotiable Instruments Act,1881(XXVI of 1881), or on any day on which the discharge or shipping of cargo at customs-port or loading, unloading passage or delivery of cargo at any land customs-station or customs-airport, as the case may be, is prohibited by the Board by notification in the official Gazette; or
(b) on any day except between such hours as the Board may, from time to time, by a like notification, appoint.
[Provided that where the Customs Computerized System is in operation, all loading and discharge may be allowed by the Collector of Customs round the clock and on all days.]
66. Goods not to be loaded or unloaded except at approved places.- Save where general permission is given under section 67 or with permission in writing of the appropriate officer, no imported goods shall be unloaded or goods for export loaded at any place other than a place duly approved under clause (b) of section 10 for the unloading or loading of such goods.
67. Power to exempt from sections 64 and 66.- Notwithstanding anything contained in section 64 or section 66, the Board may, by notification in the official Gazette, give general permission for goods to be loaded at any customs-station from any place not duly appointed for loading and without the presence or authority of an officer of customs.
68. Boat-note.- (1) When any goods are water-borne for the purposes of being landed from any vessel and warehoused or cleared for home-consumption, or of being shipped for exportation on board any vessel, there shall be sent, with each boat-load or other separate despatch, a boat-note specifying the number of packages so sent and the marks or number or other description thereof.
(2) Each boat-note for goods to be landed shall be signed by an officer of the vessel, and likewise by the officer of customs on board, if any such officer be on board, and shall be delivered on arrival to any officer of customs authorized to receive the same.
(3) Each boat-note for goods to be shipped shall be signed by the appropriate officer and, if an officer of customs is on board the vessel on which such goods are to be shipped, shall be delivered to such officer, and if no such officer be on board, shall be delivered to the master of the vessel or to an officer of the vessel appointed by him to receive it.
(4) The officer of customs who receives any boat-note of goods landed, and the officer of customs, master or other officer as the case may be, who receives any boat-note of goods shipped, shall sign the same and note thereon such particulars as the Collector of Customs may from time to time direct.
(5) The Board may from time to time, by notification in the official Gazette, suspend the operation of this section in any customs-port or part thereof.
69. Goods water-borne to be forthwith landed or shipped.- All goods water-borne for the purpose of being landed or shipped shall be landed or shipped without any unnecessary delay.
70. Goods not to be transshipped without permission.- Except in cases of imminent danger, no goods discharged into or loaded in any boat for the purpose of being landed or shipped shall be transshipped into any other boat without the permission of an officer of customs.
71. Power to prohibit plying of unlicensed cargo-boats.- (1) The Board may declare with regard to any customs-port, by notification in the official Gazette that, after a date therein specified, no boat not duly licensed and registered shall be allowed to ply as a cargo-boat for the landing and shipping of merchandise within the limits of such port.
(2) In any port with regard to which such notification has been issued, the Collector of Customs or other officer whom the Board appoints in this behalf, may, subject to rules and on payment of such fees as the Board may, by notification in the official Gazette, prescribe, issue licences for and register cargo-boats, or cancel the same.
72. Plying of ships of less than one hundred tons.- (1) Every boat belonging to a Pakistani ship and every other vessel not exceeding one hundred tons, shall be marked in such manner as may be prescribed by rules.
(2) Plying of all or any class or description of vessels of less than one hundred tons, whether in sea or inland waters, may be prohibited or regulated or restricted as to the purposes and limits of plying by rules.
(a) loading or unloading of any container or package, etc., which is believed to contain any other goods or has different weight or quantity or freigh than declared in the bill of lading or any other document in the knowledge of such person;
(b) the name and full address with telephone number of the person who stuffed the goods in the container if he is other than the actual owner of the goods;
(c) the name and full address with telephone number of the person who issued a consignment note or the house bill of lading in case of a person other than licenced by the customs as Customs agent; and
(d) full details and photo copies of corrigendum or instructions issued by the owner of the goods or by the other persons for change in the name of consignee or consignor or destination or regarding weight, value, description and quantity of the goods loaded on the conveyance arriving or leaving Pakistan;
CHAPTER IX
DISCHARGE OF CARGO AND ENTRY INWARDS OF GOODS
73. Discharge of cargo by vessels may commence on receipt of due permission.- When an order for entry inwards of any vessel which has arrived in any customs-port or a special pass permitting such vessel to break bulk has been given, discharge of the cargo of such vessel may be proceeded with.
74. Discharge of goods by conveyances other than vessels.- When on arrival of a conveyance other than a vessel at a land customs-station or customs-airport the person-in-charge of such conveyance has delivered the import manifest under section 44 and the documents required under section 48, he shall forthwith take the conveyance or cause it to be taken to the examination station at the land customs-station or customs-airport and remove or cause to be removed all goods carried in such conveyance to the custom-house in the presence of the appropriate officer or some person duly authorized by him in that behalf.
75. Imported goods not to be unloaded unless entered in the import manifest.- (1) No imported goods required to be shown in the import manifest shall, except with the permission of the appropriate officer, be unloaded from any conveyance at any customs-station unless they are specified in the import manifest or amended or supplementary import manifest for being unloaded at that customs-station.
(2) Nothing in this section shall apply to the unloading of baggage accompanying a passenger or a member or a crew or mail bags.
76. Procedure in respect of goods not unloaded by vessels within time allowed.-
(1) (a) If any goods imported by a vessel (except such as have been shown in the import manifest as not to be unloaded) are not unloaded within such period as is specified in the bill of lading or if no period is so specified, within such number of working days, not exceeding fifteen, after entry of the vessel as the Board may from time to time by notification in the official Gazette appoint, or
(b) if the cargo of any vessel, excepting a small quantity of goods, has been discharged before the expiration of the period so specified or appointed, the master of such vessel or, on his application, the appropriate officer may then carry such goods to the custom-house, there to remain for entry.
(2) The appropriate officer shall thereupon take charge of, and grant receipts for, such goods; and if notice in writing has been given by the master of such vessel that goods are to remain subject to a lien for freight, primage, general average, or other charges of a stated amount, the appropriate officer shall hold such goods until he receives notice in writing that the said charges have been paid.
77. Power to land small parcels and hold unclaimed parcels.- (1) At any time after the arrival of any vessel, the appropriate officer may, with the consent of the master of such vessel, cause any small package or parcel of goods to be carried to the custom-house there to remain for entry in charge of the officers of customs, during the remainder of the working days allowed under this Act, for the landing of such package or parcel.
(2) If any package or parcel so carried to the custom-house remains unclaimed on the expiration of the number of working days so allowed for its unloading, or at the time of clearance outwards of the vessel from which it was unloaded, the master of such vessel may give such notice as is provided in section 76, and the officer-in-charge of the custom-house shall thereupon hold such package or parcel as provided in that section.
78. Power to permit immediate discharge.- (1) Notwithstanding anything contained in sections 74,76 and 77, the appropriate officer in any customs-station to which the Board, by notification in the official Gazette, declares this section to apply, may permit the master of any vessel immediately on receipt of an order under section 47 or a special pass under section 49, or the person-in-charge of a conveyance other than a vessel on receipt of the import manifest, to discharge the goods imported by such conveyance, or any portion thereof, into the custody of his agent, if he be willing to receive the same, for the purpose of unloading the same forthwith-
(a) at the custom-house, or at any specified landing place or wharf; or
(b) at any landing-place or wharf belonging to the port commissioners, port trust, railways or other public body or company; or
(c) for giving it in the custody of such person as may be approved by the Collector of Customs.
(2) Any agent so receiving such cargo or portion shall be bound to discharge all claims for damage or short delivery which may be established in respect of the same by the owner thereof, and shall be entitled to recover from such owner his charges for service rendered, but not for commission or the like, where
any agent for the unloading of such cargo or portion has been previously appointed by the owner and such appointment is unrevoked.
(3) The appropriate officer shall take charge of all goods discharged under clause (a) of sub-section (1) and otherwise proceed in relation thereto as provided in sections 76 and 82.
(4) A public body or company or person at whose landing place or wharf or place of storage any goods are discharged under clause (b) or clause (c) of sub-section (1) shall not permit the same to be removed or otherwise dealt with except in accordance with the order in writing of the appropriate officer.
79. Declaration and assessment for home consumption or warehousing.- (1) The owner of any imported goods shall make entry of such goods for home consumption or warehousing or for any other approved purposes, within fifteen days of the arrival of the goods, by,-
(a) filing a true declaration of goods, giving therein complete and correct particulars of such goods, duly supported by commercial invoice, bill of lading or airway bill, packing list or any other document required for clearance of such goods in such form and manner as the Board may prescribe ; and
(b) assessing and paying his liability of duty, taxes and other charges thereon, in case of a registered user of the Customs Computerized System:
Provided that if, before filing a goods declaration, the owner makes a request to an officer of customs not below the rank of an Assistant Collector that he is unable, for want of full information, to make a correct and complete declaration of the goods, then such officer, subject to such conditions as he may deem fit, may permit the owner to examine the goods and thereafter make entry of such goods by filing a goods declaration after having assessed and paid his liabilities of duties, taxes and other charges:
Provided further that no goods declaration shall be filed prior to ten days of the expected time of arrival of the vessel.]
(2) If an officer, not below the rank of Additional Collector of Customs, is satisfied that the rate of customs duty is not adversely affected and that there was no intentin to defraud, he may, in exceptional circumstances and for reasons to be recorded in writing, permit, substitution of a goods declaration for home consumpton for a goods declaration for warehousing or vice cersa.
(3) An officer of Customs, not below the ank of Assistant Collector of Customs, may in case of goods requiring immediate release allow release thereof prior to presentation of a goods declaration subject to such conditions and restrictions as may be prescribed by the Board.
Court Decision
Wrong declaration made by petitioners in connection with matter of Custom which was found to be untrue in material particulars--Liability for penal action in terms of S. 32(1) of Customs Act, 1969--Where any person in connection with any matters of customs makes any declaration or statement which is untrue in any material particulars, be would be guilty of offence under S. 32(1) of Customs Act, 1969--No reference is made in S. 32, Customs Act, 1969 to S. 79, Customs Act or that such declaration or statement was made in bill of entry for an untrue declaration on statement to come within mischief of S. ‘32(1) Customs Act, the same should be untrue in any material particulars and that statement or declaration in question, was made iii connection with any matter of customs—Words “any matter of customs” are not restricted to bill of entry--Goods in question, having arrived at border were meant to be cleared at Quetta Dry Port--High Court had rightly maintained that concerned Authority at the border where declaration was made was entitled to examine whether goods correspond to declaration made so that no change in goods takes place from starting point at border to Dry Port--Such statement or declaration at the starting point, therefore, related to matter of Customs and attracted penal provisions of S. 32(1), of Customs Act, in case the same was untrue in any material particulars--High Court, thus, had correctly interpreted S. 32(1) of Customs Act, therefore, no interference was warranted in the same--Leave to appeal was refused in circumstances. PLJ 2000 SC 537
Goods dutiable--Date for determination of value and rate of import duty--Entry for home consumption or warehouse--Chargeability of duty having arisen, any change in rate of customs duty or imposition of additional duty of customs, is to be determined with reference to dates of filing of bill entry for home consumption or taking out goods from bonded warehouses as provided in S. 30, Customs Act, 1969--Rate of duty applicable to any imported goods under S. 30 of Act is duty which is applicable on date of filing of bill of entry for home consumption under S. 79 of Act and in case of goods cleared from bonded warehouse on date goods are ex-bonded from warehouse. PLJ 2000 SC 109
80. Checking of goods declaration by the Customs.- (1) On the receipt of goods declaration under section 79, an officer of Customs shall satisfy himself regarding the correctness of the particulars of imports, including declaration, assessment, and in case of the Customs Computerized System, payment of duty,
(2) An officer of Customs may examine any goods that he may deem necessary at any time after the import of the goods into the country and may requisition relevant documents, as and when and in the manner deemed appropriate, during or after release of the goods by Customs;
(3) If during the checking of goods declaration, it is found that any statement in such declaratin or document or any information so furnished is not correct in respect of any matter relating to the assessment, the goods shal, without prejudice to any other action which may be taken under this Act, be reassessed to duty.
(4) In case of the Customs Computerized System, goods may be examined only on the basis of computereized selectivity criteria.
(5) The Collector may, however, either condone the examination or defer the examination of imported goods or class of goods and cause it to be performed at a designated place as he deems fit and proper either on the request of the importer or otherwise.
Court Decision
Filing of Bill of Entry for placing it in customs Bonded
ware house--Prior to removal 26 cases were destroyed in a fire
Notice for payment of Tax on said goods--Writ against--According to S. 108 of
Act, 1969, if any goods are damaged due to unavoidable accident after they have
been entered for warehousing and assessed u/S. 80 and before they are cleared
for home consumption, their value in damaged state may be apprised--Since, the
petitioner had entered goods for ware housing before the same were burnt,
he was entitled to relief provided by Section 108--Petitioner was in no way
responsible for fire which accrued due to some unavoidable circumstances--Goods
were not in possession or control of petitioner at that time and had, as a
matter of fact, not even cleared customs barrier--It is highly anomalous to
demand payment of customs duty on such goods--Impugned demand was declared to
be without any lawful authority. PLJ 2000
81. Provisional determination of liability.- (1) Where it is not possible for an officer of Customs during the checking of the goods declaration to satisfy himself of the correctness of the assessment of the goods made under section 79, for reasons that the goods require chemical or other test or a further inquiry, an officer, not below the rank of Assistant Collector of Customs, may order that the duty, taxes and other charges paybale on such goods, be determined provisinally:
Provided that the importer, save in the case of goods entered for warehousing, pays such additional amount on the basis of provisional assessment or furnishes bank guarantee or a post-dated cheque of an shcedule bank along with an indemnity bond for the payment thereof as the said officer deems sufficient to meet the likely differential between the final determination of duty over the amount determined provisionally:
Provided further that there shall be no provisional assessment under this section if no differential amount of duty and tax is paid or secured against bank guarantee or post-dated cheque.
(2) Where any goods are allowed to be cleared or delivered on the basis of such provisional determination, the amount of duty, taxes and charges correctly payable on those goods shall be determined within nine months of the date of provisional deteremination:
Provided that the Collector of Customs may, in circumstances of exceptional nature and after recording such circumstances, extend the period for final determination by not more than ninety days.
(3) On completion of final determination, the amount already paid or guaranteed shall be adjusted against the amount payable on the basis of final deteremination, and the difference between the two amounts shall be paid forthwith to or by the importer, as the case may be.
(4). If the final determination is not made with the period specified in sub-section (2), the provisional determination shall, in the absence of any new evidence, be deemed to be the final determination.
Explanation.- Provisional assessment means the amount of duties and taxes paid or secured against bank guarantee or post-dated cheque.
Court Decision
Provisional assessment when becomes final—Goods
allowed to be cleared or delivered on basis of final assessment would be
finally assessed within one year of provisional assessment--Where final
assessment was not completed within that period, provisional assessment would
become final. PLJ 2005
Interim assessment--Maturity of interim
assessment into final assessment--Maturity of provisional assessment into final
assessment after expiry of statutory period would appear to be reasonable and
in accordance with facts on ground--Proviso to S. 81 of Customs Act, 1969,
however, indicates that exporter would be required to pay additional amount as
security or bank guarantee, “to meet excess of final assessment of duty over
provisional assessment”--Words used in proviso indicate that amount to which
consignment was released on payment of taxes-and duties was provisional
assessment--Petitioner, plea relating to release of bank guarantee was rejected
by respondents on the ground that provisional assessment having become find he
was not entitled to the same--Such defence was not available to respondents and
they were directed to return bank guarantee submitted by petitioner within 7
days after order was conveyed to them. PLJ 2005
82. Procedure in case of goods not cleared or warehoused or transshipped or exported or removed from the port within twenty days after unloading or filing of declaration.- If any goods are not cleared for home-consumption or warehoused or transshipped or are not loaded on the conveyance for export or removed from the port area within twenty days of their arrival at a customs station or within such extended period not exceeding ten days, an officer not below the rank of Assistant Collector may allow,and such goods may, after the due notice given to the owner if his address could be ascertained, or after due notice to the carrier, shipping or customs agent, custodian of the goods, as the case may be, if his address could not be ascertained, may be sold in auction or taken into custody by Customs and removed from the port to a Customs warehouse for auction under the order of the Assistant Collector notwithstanding the fact that adjudication of the case under section 179, or an appeal under section 193, or 196, or a proceeding in any court is pending:
Provided that-
(a) animals and perishable and hazardous goods may, with the permission of the appropriate officer, be sold or destroyed at any time;
(b) arms, ammunition or military stores may be sold or otherwise disposed of at such time and place and in such manner as the Board may, with the approval of the Federal Government, direct;
(c) in cases where goods are sold pending adjudication, appeal or decision of the court, the proceeds of sale shall be kept in deposit and if on such adjudication, or as the case may be, in such appeal or the decision of the court, the goods sold are found not to have been liable to confiscation, the entire sale proceeds, after necessary deduction of
duties, taxes transportation and other charges or dues as provided in section 201, shall be handed over to the owner:
Provided further that where Customs removes such goods from the premises of the custodian for disposal, the charges due to the custodian shall be paid subsequently from the sale proceeds of the goods in the manner as provided under section 201:
Provided also that nothing in this section shall authorize removal for home consumption of any dutiable goods without payment of customs duties thereon.
CHAPTER X
CLEARANCE OF GOODS FOR HOME-CONSUMPTION
83. Clearance for home consumption.- (1) When the owner of any goods entered for home-consumption and assessed under section 80 or 81 has paid the import duty and other charges, if any, in respect of the same the appropriate officer, if he is satisfied that the import of the goods is not prohibited or in breach of any restrictions or conditions applying to the import of such goods, may make an order for the clearance of the same:
Provided that, at customs-stations where the Customs Computerized System is operational the system may clear the goods through system generated clearance documents.
(2) Where the owner fails to pay import duty and other charges within ten days from the date on which the same has been assessed under sections 80,80A or 81, he shall be liable to pay surcharge at the rate of fourteen per cent per annum on import duty and other charges payable on such goods.
83.A Levy of additional duty.- Notwithstanding anything contained in this Act and without prejudice to any other action that may be taken under this Act, if any person fails to pay the dues recoverable under this Act within the prescribed time, he shall, in addition to the dues payable, be liable to pay additional duty at the rate of one and a half percent per month.
Explanation: For the purpose of calculating additional duty, the period of default shall be reckoned from the day following the due date on which the dues were required to be paid to the day preceding the date on which the same are actually paid
CHAPTER XI
WAREHOUSING
84. Application to warehouse.- When any dutiable goods have been entered for warehousing and assessed under section 80 or 81 the owner of such goods may apply for leave to deposit the same in any warehouse appointed or licensed under this Act:
Provided that the Collector of Customs, for reasons to be recorded in writing, may disallow the warehousing of goods or any class of goods or goods belonging to a particular importer:
Provided further that, at customs-stations where the Customs Computerized System is operational the system may allow removal to warehouse through system generated clearance documents.
Court Decision
Filing of Bill of Entry for placing it in customs Bonded
ware house--Prior to removal 26 cases were destroyed in a fire
Notice for payment of Tax on said goods--Writ against--According to S. 108 of
Act, 1969, if any goods are damaged due to unavoidable accident after they have
been entered for warehousing and assessed u/S. 80 and before they are cleared
for home consumption, their value in damaged state may be apprised--Since, the
petitioner had entered goods for ware housing before the same were burnt,
he was entitled to relief provided by Section 108--Petitioner was in no way
responsible for fire which accrued due to some unavoidable circumstances--Goods
were not in possession or control of petitioner at that time and had, as a
matter of fact, not even cleared customs barrier--It is highly anomalous to
demand payment of customs duty on such goods--Impugned demand was declared to
be without any lawful authority--Petition allowed. PLJ
2000
85. Form of application.- Every such application shall be in writing signed by the applicant, and shall be in such form as may be prescribed by the Board.
86. Submission of post-dated cheque and indemnity bond.- (1) When any such application has been made in respect of any goods, the owner of the goods to which it relates shall furnish an indemity bond and post-dated cheque equivalent to the duty assessed under section 80 or section 81 or reassessed under section 109 on such goods,-
(a) to observe all the provisions of this Act and the rules in respect of such goods;
(b) to pay on or before a date specified in a notice of demand all duties, taxes, rent and charges payable in respect of such goods together with surcharge on the same from the date so specified at the rate of one per cent per month or such other rate as is for the time being fixed by the Board; and
(c) to discharge all penalties incurred for violation of the provisions of this Act and the rules in respect of such goods.
(2) Every such post-dated cheque shall be equivalent to the duties and taxes leviable on the goods or portion of the goods of one conveyance only.
87. Forwarding of goods to warehouse.- (1) When the provisions of sections 85 and 86 have been complied with in respect of any goods, such goods shall be forwarded in charge of an officer of customs to the warehouse in which they are to be deposited.
(2) A pass shall be sent with the goods specifying the name of the bonder and the name or number of the importing conveyance, the marks, numbers and contents of each package, and the warehouse or place in the warehouse wherein they are to be deposited.
88. Receipt of goods at warehouse.- (1) On receipt of the goods, the pass shall be examined by the warehouse-keeper, and shall be returned to the appropriate officer.
(2) No package, butt, cask or other container shall be admitted into any warehouse unless it bears the marks and numbers specified in, and otherwise corresponds with, the pass for its admission.
(3) If the goods be found to correspond with the pass, the warehouse-keeper shall certify to that effect on the pass, and the warehousing of such goods shall be deemed to have been completed.
(4) If the goods do not so correspond, the fact shall be reported by the warehouse-keeper for the orders of the appropriate officer, and the goods shall either be returned to the custom-house in charge of an officer of customs or kept in deposit pending such orders as the warehouse-keeper deems most convenient.
(5) If the quantity or value of any goods has been incorrectly stated in the [goods declaration], due to inadvertence or bona fide error, the error may be rectified at any time before the warehousing of the goods is completed, and not subsequently.
89. Goods how warehoused.- Except as provided in section 94, all goods shall be warehoused in the packages, butts, casks or other containers in which they have been imported.
Court Decision
Section
179-A of the Act gives the verdict of Special Judge or Special Appellate Court
supremacy over orders passed by the authorities in adjudication proceedings--It
is the date of commission of offence and commencement of prosecution, which has
relevancy qua applicability of Section 179-A of the Act--Occurrence took place
on 3.12.1978, when Section 179-A of the Act was in force and was repealed later
on 28.6.1979--In view of the judgment of acquittal of petitioners passed by
Special Appellate Court in criminal appeal (PTCL-1988-CL-131), order passed by
respondents in adjudication proceedings confiscating their goods etc., could
not sustain and were declared as without lawful authority. PLJ 2001
Attempt to Smuggle--Whether accused can be convicted and sentenced
simultaneously under subsections (8) and (89) of Section 156 of Customs
Act--Question of--If a person has been found without lawful excuse in
possession of smuggled goods etc. he would be dealt with under subsection (89)
of section 156 of Customs Act and if evidence produced by prosecution
establishes that accused was smuggling goods outside or-into Pakistan, than he
would be liable to be dealt with under sub-section (8) of Section 156 of
Customs Act, 1969 and in such circumstances, he would not be punished under
sub-section (89) of section 156 of Customs Act. 1998
P Cr. L J 411 = PLJ 1998
90. Warrant to be given when goods are warehoused.- (1) Whenever any goods are lodged in a public warehouse or a licensed private warehouse, the warehouse-keeper shall deliver a warrant signed by him as such to the person lodging the goods.
(2) Such warrant shall be in such form as the Board may from time to time prescribe, and shall be transferable by endorsement; and the endorsee shall be entitled to receive the goods specified in such warrant on the same terms as those on which the person who originally lodged the goods would have been entitled to receive the same.
(3) The Board may, by notification in the official Gazette, exempt any class of goods from the operation of this section.
91. Access of customs officer to warehouse.- The appropriate officer shall have access to any warehouse licensed under this Act.
92. Power to cause packages lodged in warehouse to be opened and examined.- (1) The appropriate officer may at any time by order in writing direct that any goods or packages lodged in any warehouse shall be opened, weighed or otherwise examined; and, after any goods have been so opened, weighed or examined, may cause the same to be sealed or marked in such manner as he thinks fit.
(2) When any goods have been so sealed and marked after examination, they shall not be again opened without the permission of the appropriate officer; and, when any such goods have been opened with such permission, the packages shall, if he thinks fit, be again sealed or marked.
93. Access of owner to warehoused goods.- (1) Any owner of goods lodged in a warehouse shall, at any time within the hours of business, have access to his goods in the presence of an officer of customs, and an officer of customs shall, upon application for the purpose being made in writing to the appropriate officer, be deputed to accompany such owner.
(2) When an officer of customs is specially employed to accompany such owner, a sum sufficient to meet the expense thereby incurred shall, subject to rules, be paid by such owner to the appropriate officer, and such sum shall, if the appropriate officer so directs, be paid in advance.
94. Owner’s power to deal with warehoused goods.- (1) With the sanction of the appropriate officer and on payment of such fees as may be prescribed by rules, the owner of any goods may, either before or after warehousing the same,-
(a) separate damaged or deteriorated goods from the rest;
(b) sort the goods or change their containers for the purpose of preservation, sale, export or disposal of the goods;
(c) deal with the goods and their containers in such manner as may be necessary to prevent loss or deterioration or damage to the goods;
(d) show the goods for sale; or
(e) take such samples of goods as may be allowed by the appropriate officer with or without entry for home-consumption, and with or without payment of duty, except such as may eventually become payable on a deficiency of the original quantity.
(2) After any such goods have been so separated and repacked in proper or approved packages, the appropriate officer may, at the request of the owner of such goods, cause or permit any refuse, damaged or surplus goods remaining after such separation or repacking (or, at the like request, any goods which may not be worth the duty) to be destroyed, and may remit the duty payable thereon.
95. Manufacture and other operations in relation to goods in a warehouse.- (1) Subject to rules, the owner of any warehoused goods may, with the permission in writing of the Collector of Customs, carry on any manufacturing process or other operations in the warehouse in relation to such goods.
(2) Where in the course of any such operation or process there is any waste or refuse the following provisions shall apply, namely:-
(a) If the whole or any part of the goods produced by such operation or process are exported, no duty shall be charged on the quantity of the warehoused goods wasted or turned into refuse in the course of the operation or processing carried on in relation to the goods exported:
Provided that such waste or refuse is either destroyed or duty is paid on such
waste or refuse as if it had been imported into
(b) If the whole or any part of the goods produced by such operation or process are cleared from the warehouse for home-consumption, duty shall be charged on the quantity of the warehoused goods wasted or turned into refuse in the course of the operation or processing carried on in relation to the goods cleared for home-consumption.
96. Payment of rent and warehouse dues.- (1) If goods be lodged in a public warehouse, the owner shall unless exempted by an order of the Collector or an officer not below the rank of Assistant Collector or Deputy Collector, authorized by him, pay monthly rent and warehouse-dues at such rates as the Collector of Customs may fix.
(2) A table of the rates of rent and warehouse-dues so fixed shall be placed in a conspicuous part of such warehouse.
(3) If any demand for such rent or dues is not discharged within ten days of its presentation, the appropriate officer may, in the discharge of such demand (any transfer or assignment of the goods notwithstanding) cause to be sold, after due notice in the official Gazette, such sufficient portion of the goods as he may select.
(4) The proceeds of such sale shall be adjusted in accordance with section 201.
97. Goods not to be taken out of warehouse except as provided by this Act.- No warehoused goods shall be taken out of any warehouse, except on clearance for home-consumption or export, or for removal to another warehouse, or as otherwise provided in this Act.
98. Period for which goods may remain warehoused.- (1) Warehoused goods, other than perishable goods notified by the Central Board of Revenue, may remain in the warehouse for a period of six months following the date of their admission into the warehouse and perishable goods so notified may remain in the warehouse for a period of three months, following the said date:
Provided that the said period may, in case of non-perishable goods, be extended, on sufficient cause being shown by the owner of the warehoused goods and subject to the condition that he pays in advance surcharge on the duty and taxes involved at one per cent per month for the extended period-
(a) by the Collector of Customs, for a period not exceeding one month in case of notified perishable goods and a period not exceeding three months in case of non-perishable goods; and
(b) subject to the condition that the extension in case of perishable goods shall be granted only if the goods are fit for human consumption.
(2) The Federal Government may, subject to such conditions, or restrictions as it may deem fit to impose, by notification in the official gazette, remit the whole or a part of the surcharge in case of any goods or category of goods and the Board, in circumstances of exceptional nature, may, subject to such conditions, limitations or restrictions, if any, as it may think fit to impose, by a special order in each case recording such circumstances remit the whole or a part of the surcharge.
(3) Notwithstanding anything contained in sub-section (1), the Federal Government may, by notification in the official Gazette, limit the period for which goods or class of goods may remain in the warehouse:
Provided that such period shall not be less than one month.
(4) When the licence of any warehouse is cancelled, the owner of any goods warehoused therein shall, within ten days of the date on which notice of such cancellation is given, or within such extended period as the appropriate officer may allow, remove the goods from that warehouse to another warehouse or clear them for home-consumption or exportation.
99. Power to remove goods from one warehouse to another in the same customs-station.- (1) Any owner or a manufacturer-cum-exporter duly authorized by such owner in respect of goods warehoused under this Act may, within the period of their warehousing under section 98, and with the permission of the Collector of Customs, on such conditions and after giving such security, if any, as the Collector directs, remove goods from one warehouse to another warehouse in the same warehousing station.
(2) when any owner or a manufacturer-cum-exporter duly authorized by such owner desires to remove any goods, he shall apply for permission to do so in such form as the Board may prescribe.
100. Power to remove goods from one warehousing station to another.- (1) Any owner or a manufacturer-cum-exporter duly authorized by such owner in respect of goods warehoused at any warehousing station may, within the period of their warehousing under section 98, remove the same for the purpose of warehousing them at any other warehousing station.
(2) When any owner or a manufacturer-cum-exporter duly authorized by such owner desires to remove any goods for such purpose, he shall apply to the Collector of Customs in such form and manner as the Board may prescribe stating therein the particulars of the goods to be removed, and the name of the customs-station to which they are to be removed.
101. Transmission of account of goods to officers at warehousing station of destination.- (1) When permission is granted for the removal of any goods from one warehousing station to another under section 100, an account containing the particulars thereof shall be transmitted by the appropriate officer of the customs-station of removal to the appropriate officer of the customs-station of destination.
(2) The person requiring the removal shall before such removal enter into a bond, with one sufficient surety, in a sum equal at least to the duty chargeable on such goods, for the due arrival and re-warehousing thereof at the customs-station of destination, within such time, as the Collector of Customs directs.
(3) Such bond may be taken by the appropriate officer either at the customs-station of removal or at the customs-station of destination as best suits the convenience of the owner.
(2) If such bond is taken at the customs-station of destination, a certificate thereof signed by the appropriate officer of such station shall at the time of the removal of such goods be produced to the appropriate officer at the customs-station of removal; and such bond shall not be discharged unless such goods are produced to the appropriate officer, and duly re-warehoused at the customs-station of destination within the time allowed for such removal or are otherwise accounted for to the satisfaction of such officer; nor until the full duty due upon any deficiency of such goods, not so accounted for, has been paid.
102. Remover may enter into a general bond.- The Collector of Customs may permit any person desirous of removing warehoused goods to enter into a general bond, with such sureties, in such amount and under such conditions as the Collector approves, for the removal, from time to time, of any goods from one warehouse to another, either in the same or in a different warehousing station and for the due arrival and re-warehousing of such goods at the destination within such time as the Collector directs.
103. Goods on arrival at customs-station of destination to be subject to same laws as goods on first importation.- Upon the arrival of warehoused goods at the customs-station of destination, they shall be entered and warehoused in like manner as goods are entered and warehoused on the first importation thereof, and under the laws and rules, in so for such laws and rules are applicable, which regulate the entry and warehousing of such last mentioned goods.
104. Clearance of bonded goods for home-consumption.- Any owner or a manufacturer-cum-exporter duly authorized by such owner in respect of warehoused goods may, at any time within the period of their warehousing under section 98, clear such goods for home-consumption by paying-
(a) the duty assessed on such goods under the provisions of this Act; and
(b) all rent, penalties, surcharge and other charges payable in respect of such goods:
Provided that in case of manufacturer-cum-exporter duly qualified for claiming exemption under any notification issued under this Act, the ex-bonding of goods under this section shall be without payment of duties and taxes.
105. Clearance of warehoused goods for export.- Any owner of warehoused good may, at any time within the period of their warehousing under section 98, clear such goods for export out of Pakistan on payment of all rent, penalties, surcharge and other charges payable as aforesaid but without paying any import duty thereon:
Provided that, if the Federal Government is of the opinion that warehoused goods of any specified description are likely to be smuggled back into Pakistan, it may, by notification in the official Gazette, direct that such goods shall not be exported to any place outside Pakistan without payment of duty or allow them to be exported subject to such restrictions and conditions as may be specified in the notification.
106. Clearance of warehoused goods for export as provisions, on a conveyance proceeding to foreign destination.- Any warehoused provisions and stores may be exported within the period of their warehousing under section 98 without payment of import duty for use on board any conveyance proceeding to a foreign territory.
107. Application for clearance of goods.- (1) An application to clear goods from any warehouse for home-consumption or for export shall be made in such form as the Board may prescribe.
(2) Such application shall ordinarily be made to the appropriate officer at least twenty-four hours before it is intended to clear such goods.
108. Reassessment of warehoused goods when damaged or deteriorated.- If any goods upon which duties are levied ad valorem or otherwise are damaged or deteriorated due to an unavoidable accident or cause after they have been entered for warehousing and assessed under section 80 and before they are cleared for home-consumption, their value in the damaged or deteriorated state may be appraised according to either of the methods provided in sub-section (2) of section 27, if the owner so desires, by an officer of customs and the duty leviable thereon shall be diminished in proportion to the diminution of their value and a new bond for twice the amount of the diminished duty may, at the option of the owner, be executed by him to replace the bond originally executed.
Court Decision
Goods dutiable--Date for determination of value and rate of import duty--Entry for home consumption or warehouse--Chargeability of duty having arisen, any change in rate of customs duty or imposition of additional duty of customs, is to be determined with reference to dates of filing of bill entry for home consumption or taking out goods from bonded warehouses as provided in S. 30, Customs Act, 1969--Rate of duty applicable to any imported goods under S. 30 of Act is duty which is applicable on date of filing of bill of entry for home consumption under S. 79 of Act and in case of goods cleared from bonded warehouse on date goods are ex-bonded from warehouse. PLJ 2000 SC 109
Wrong declaration made by petitioners in connection with matter of Custom which was found to be untrue in material particulars--Liability for penal action in terms of S. 32(1) of Customs Act, 1969--Where any person in connection with any matters of customs makes any declaration or statement which is untrue in any material particulars, be would be guilty of offence under S. 32(1) of Customs Act, 1969--No reference is made in S. 32, Customs Act, 1969 to S. 79, Customs Act or that such declaration or statement was made in bill of entry for an untrue declaration on statement to come within mischief of S. ‘32(1) Customs Act, the same should be untrue in any material particulars and that statement or declaration in question, was made iii connection with any matter of customs—Words “any matter of customs” are not restricted to bill of entry--Goods in question, having arrived at border were meant to be cleared at Quetta Dry Port--High Court had rightly maintained that concerned Authority at the border where declaration was made was entitled to examine whether goods correspond to declaration made so that no change in goods takes place from starting point at border to Dry Port--Such statement or declaration at the starting point, therefore, related to matter of Customs and attracted penal provisions of S. 32(1), of Customs Act, in case the same was untrue in any material particulars--High Court, thus, had correctly interpreted S. 32(1) of Customs Act, therefore, no interference was warranted in the same--Leave to appeal was refused in circumstances. PLJ 2000 SC 537
109. Reassessment on alteration of duty.- If any goods have been entered for warehousing and assessed under section 80 or 81 but the duty leviable thereon is subsequently altered, such goods shall be reassessed on the basis of the altered duty and a new bond shall be executed by the owner in accordance with the provisions of section 86 to replace the bond originally executed by him.
110. Allowance in case of volatile goods.- When any warehoused goods of such class or description as the Board having regard to the volatility of such goods and the manner of their storage may, by notification in the official Gazette, specify are, at the time of delivery from a warehouse, found to be deficient in quantity and the Collector of Customs is satisfied that such deficiency is on account of natural loss, no duty shall be charged on such deficiency.
111. Duty on goods improperly removed from warehouse or allowed to remain beyond fixed time or lost or destroyed or taken as sample.- In respect of goods specified hereunder the appropriate officer may demand and upon such demand the owner of such goods shall forthwith pay the full amount of duty chargeable on such goods together with all rent, penalties, surcharge and other charges payable in respect of them, namely:-
(a) Warehoused goods which are removed in contravention of section 97.
(b) Goods which have not been removed from the warehouse within the time allowed for such removal under section 98.
(c) Goods in respect of which a bond has been executed under section 86 and which have not been cleared for home-consumption or export or removed in accordance with the provisions of this Act and are lost or
destroyed otherwise than as provided in sections 94 and 95 or as mentioned in section 115, or are not accounted for to the satisfaction of the appropriate officer.
(d) Goods which have been taken under section 94 as samples without payment of duty.
Court Decision
Goods unlawfully removed from warehouses--Effect--Consignment
in question, having been stored in a bonded warehouse, custom duties would be
payable at the rate prevailing on the date of actual removal of goods from the
warehouse for consumption--Goods bonded in warehouse had been removed therefrom
without payment of custom duties and replaced with goods which had no nexus
with description given in relevant Bills of Entry--Goods in question, having
been removed from public warehouse respondent’s were liable to pay penalty both
under Sections 111 & 156 (1) (57)--Custom Authorities would determine penal
liability (amount) strictly in terms of S. 156 (57) which envisages penalty
equal to five time the duty chargeable on goods so deficient--Relevant data of
custom duty would be the date of detection of removal of goods from the bonded
warehouse as the date of ex-bonding. PLJ 2004
112. Encashment of post-dated cheque.- (1) Where the owner fails to clear bonded goods to the purposes specified in this Chapter within the warehousing period, the post-dated cheque submitted under section 86 by the owner of goods may be got encashed after the expiry of warehousing period.
(2) In case the post-dated cheque is not enchased for any reason, the Collector of customs or any officer designated by him may detain the owner’s goods whether lying in any warehouse or freshly imported for public auction and adjustment of sale proceeds against the amount of duties, taxes surcharges, rents and penalties, etc., which may have become payable on goods warehoused but not cleared within the specified period and the surplus amount, if any, shall be disposed of in the manner provided in section 201.
Court Decision
Power to levy penalty
under S. 112 for improper importation of goods is different from power of
confiscation of goods under S. 125--Levy of fine in lieu of confiscation under
S. 125 is in addition to levy of penalty imposable under S. 112. PLJ 2003 SC (
113. Noting removal of goods.- (1) When any warehoused goods are taken out of any warehouse, the appropriate officer shall cause the fact to be noted on the back of the bond.
(2) Every note so made shall specify the quantity and description of such goods, the purposes for which they have been removed, the date of removal, the name of the person removing them, the number and date of the [goods declaration] under which they have been taken away, if removed for exportation, or for home-consumption and the amount of duty paid, if any.
Provided that at customs-station where the Customs Computerized System is operational, the requirement of this section shall be completed in accordance with that system.
114. Register of bonds.- (1) A register shall be kept of all bonds entered into for customs-duties on warehoused goods, and entry shall be made in such register of all particulars required by section 113 to be specified.
(2) When such register shows that the whole of the goods covered by any bond have been cleared for home-consumption or export, or otherwise duly accounted for, and when all amounts due on account of such goods have been paid, the appropriate officer shall cancel such bond as discharged in full, and shall on demand deliver the cancelled bond to the person who executed it or who is entitled to receive it.
115. Power to remit duties on warehoused goods lost or destroyed.- If any warehoused goods in respect of which a bond has been executed under section 86 and which have not been cleared for home-consumption are lost or destroyed by unavoidable accident or cause, the Collector of Customs may in his discretion remit the duties due thereon:
Provided that, if any such goods be so lost or destroyed in a warehouse, notice thereof be given to the appropriate officer within forty-eight hours of such loss or destruction.
116. Responsibility of warehouse keeper.- The warehouse-keeper in respect of goods lodged in a public warehouse, and the licensee in respect of goods lodged in a private warehouse, shall be responsible for their due receipt therein and delivery therefrom, and their safe custody while deposited therein, accordance to the quantity, weight or gauge reported by the officer of customs who has assessed such goods, allowance being made, if necessary, for deficiency in quantity on account of natural loss as provided in section 110:
Provided that no owner of goods shall be entitled to claim from the appropriate officer or from any keeper of a public warehouse, compensation for any loss or damage occurring to such goods while they are being passed into or out of such warehouse, or while they remain therein, unless it be proved that such loss or damage was occasioned by the willful act or neglect of the warehouse-keeper or of an officer of customs.
117. Locking of warehouses.- (1) Every public warehouse shall be under the lock and key of both the warehouse-keeper appointed by the Collector of Customs, and the appropriate officer.
(2) Every private warehouse shall be under the lock and key of both the licensee and the appropriate officer.
118. Power to decide where goods may be deposited in public warehouse, and on what terms.- The Collector of Customs may from time to time determine in what division of any public warehouse or private warehouse, and in what manner, and on what terms, any goods may be deposited, and what sort of goods may be deposited in any such warehouse.
119. Expenses of carriage, packing, etc. to be borne by owner.- The expenses of carriage, packing and storage of goods on their receipt into or removal from a public warehouse shall, if paid by the appropriate officer or by the warehouse-keeper, be chargeable on the goods and be defrayed by, and recoverable from, the owner, in the manner provided in section 112
CHAPTER XII
TRANSHIPMENT
120. Chapter not to apply to postal articles.- The provisions of this chapter shall not apply to goods imported by post.
121. Transhipment of goods without payment of duty.- (1) Subject to the provisions of section 15 and the rules, the appropriate officer may, on application by the owner of any goods imported at any customs-station and specially and distinctly manifested at the time of importation as for transshipment to some other customs-station or foreign destination, grant leave to transship the same without payment of duty, if any, chargeable on such goods with or without any security or bond for the due arrival and entry of the goods at the customs-station of destination.
(2) The Board may, subject to rules and such conditions as it may deem fit to impose, authorize certain carriers to transport goods under the multimodal, scheme. Goods transported under the multimodal scheme shall be specially and distinctly manifested at the time of importation as for transshipment to some other customs-station or foreign destination and shall not -
(a) require distinct permission for transshipment from the customs-station of first entry into the country to be transported to the customs-station of destination. The principal carrier issuing the multimodal bill of lading or air way bill will be responsible for the sanctity of the cargo during transportation between the customs-station of first entry into the country to the customs-station of destination; and
(b) be subject to the risk management system at the customs station of first entry.
(3) The Board may, subject to such conditions as it may deem fit, grant licence to any carrier to carry goods under the multimodal scheme.
122. Superintendence of transshipment.- An officer of customs may be deputed free of charge to superintend the removal of transshipped goods from one conveyance to another:
Provided that nothing in this section shall apply to the goods transported under the multimodal scheme.
123. Entry, etc., of transshipped goods.- (1) All goods transshipped under sub-section (2) of section 121 to any customs-station shall, on their arrival at such customs-station, be entered in the same manner as goods on their first importation and shall be dealt with likewise.
(2) All goods being transshipped under sub-section (1) of section 121 from a customs-station of first entry into the country, where the Customs Computerized System is operational and the goods are determined to be high risk by the risk management system shall be dealt with under rules on the subject.
124. Transshipment of provisions and stores from one conveyance to another of the same owner without payment of duty.- Any provisions and stores in use or being carried for use on board a conveyance may, at the discretion of the appropriate officers be transshipped to another conveyance belonging wholly or partly to the same owner and present simultaneously at the same customs-station, without payment of duty.
125. Levy of transshipment fees.- Subject to the rules, a transshipment fee on any goods or class of goods transshipped under this Act may be levied at such rates, according to weight, measurement, quantity, number, bale, package or container, as the Board may, by notification in the official Gazette, prescribe for any customs-station or class of customs-stations.
Court Decision
Power
to levy penalty under S. 112 for improper importation of goods is different from
power of confiscation of goods under S. 125--Levy of fine in lieu of
confiscation under S. 125 is in addition to levy of penalty imposable under S.
112. PLJ 2003 SC (
CHAPTER XIII
TRANSIT TRADE
126. Chapter not to apply to baggage and postal articles.- The provisions of this Chapter shall not apply to (a) baggage, and (b) goods imported by post.
127. Transit of goods in the same conveyance.- (1) Subject to the provisions of section 15 and the rules any goods imported in a conveyance and mentioned in the import manifest as for transit in the same conveyance to customs-station in Pakistan or to any destination outside Pakistan may be allowed to be so transited without payment of duty, if any, leviable on such goods at the customs-station of transit.
(2) Any stores and provisions
imported on board a conveyance which is in transit through
128. Transport of certain classes of goods subject to
prescribed conditions.- Any goods may be transported from one part of
129. Transit of goods across Pakistan to a foreign territory.- Where any goods are entered for transit across Pakistan to a destination outside Pakistan, the appropriate officer may, subject to the provisions of the rules, allow the goods to be so transited without payment of the duties which would otherwise by chargeable on such goods:
Provided that the Federal Government may, by notification in the official Gazette, prohibit the bringing into Pakistan by sea, land or air in transit to a foreign territory any goods or class of goods.
Court Decision
Import of machinery--Surcharge and Iqra Surcharge--Imposition of--Writ and appeal against in Pakistan High Court and Supreme Court--Dismissal of--Release of consignment on furnishing of guarantee--Writ against in AJ&K--Iqra Surcharge and Surcharge are imposed under laws enforced in Pakistan and demanded by collector Custom Karachi upon consignment imported into Pakistan--Imposition of above duty is held valid by Supreme Court of Pakistan on appeal against judgments of Lahore High Court and petitioner was one of those appellants--Laws inforce in Pakistan apply to all those who import in or export from Pakistan ports, whether state subjects or Nationals of any other country of world--In absence of any special arrangement under law, law of land where cause of action accrues applies, irrespective of fact to which country or nationality importer or exporter belongs. PLJ 1999 AJK 1
Imposition of Surcharge and Iqra Surcharge on consignment booked for AJK--Challenge to--Whether a custom duty can be imposed by authorities at Karachi on consignment booked for AJK being foreign country--Question of--AJK is a political and administrative entity within dominion of Pakistan with full autonomy and uninterrupted powers vested in it through its council, Assembly and Government except those excluded from its purview under Sec. 31(3)--AJK does not at all have a nation--State identity under International Law and Constitutional set-up under which it is governed--Petitioner did never claim before custom authorities that consignment is in transit for AJK which is a foreign territory--Held: Contention of petitioner that consignment charged for by custom authorities being in transit for foreign territory AJK is misconceived and provisions of Ss. 18 and 129 of Customs Act, 1969, are not attracted. PLJ 1999 AJK 1
CHAPTER XIV
EXPORTATION OR SHIPMENT AND RELANDING
130. No goods to be loaded on a conveyance, till entry outwards or permission granted.- No goods other than passengers’ baggage or mail bags or ballast urgently required for a vessel’s safety shall be loaded or water-borne to be loaded on a conveyance at a place in a customs-station approved for the purpose under clause (b) of section 10, until an order under section 50 in respect of the conveyance has been given or permission in this behalf in writing has been granted by the appropriate officer.
131. Clearance for 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 a goods declaration to Customs containing correct and complete particulars of his goods, and assessesd 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 Computereized System;
(c) Customs has, on the receipt of goods declaration under clause (a), satisfied itslef regarding the correctness of the particulars of export, including declaratin, assessment, and payment of duty, taxes and other charges and verified the admissibility of the duty drawback claimed as specified in clause (b); and
(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 deemds fit and proper.
Court Decision
Customs Authorities Investigating case against such
officials were likely to mould investigation in their favour just to oust
themselves from present embarrassing situation and in such state of affairs
their effort to shift responsibility to others cannot be taken out of
consideration--Entrustment of case to some other agency for investigation was
recommended by High Court so as to meet ends of justice and fair play. PLJ 2005 Cr.C. (
132. Bond required in certain cases before exportation.- Before any warehoused goods subject to excise duties, or goods entitled to drawback or repayment of customs-duties on exportations or goods exportable only under particular rules or restrictions, are permitted to be exported, the owner shall, if required so to do, give security by bond in such sum not exceeding twice the duty leviable on such goods as the appropriate officer directs, with one sufficient surety, that such goods shall be exported and landed at the place for which they are entered outwards or shall be otherwise accounted for to the satisfaction of such officer.
133. Additional charge on goods cleared for export after port-clearance granted.- Where the goods are cleared for shipment on a [goods declaration] presented after port-clearance or permission to depart has been granted, the appropriate officer may, if he thinks fit, levy, in addition to any duty to which such goods are ordinarily liable, a charge not exceeding one per cent of the value of the goods determined in accordance with the provisions of section 25.
134. Notice of non-loading or relanding and return of duty thereon.- (1) If any goods mentioned in a [goods declaration] or manifest be not loaded or be loaded and afterwards relanded, the owner shall before the expiration of fifteen clear working days after the conveyance on which such goods were intended to be loaded or from which they were relanded has left the customs-station, give information of such short-loading or relanding to the appropriate officer save where the latter has occasioned the short-loading or relanding.
(2) Upon an application being made to the appropriate officer within one year of such short-loading or relanding, any duty levied upon goods not loaded or upon goods loaded and afterwards relanded shall be refunded to the person on whose behalf such duty was paid:
Provided that, where the required information of short-loading or relanding is not given within the aforesaid period of fifteen days, the appropriate officer may make refund of duty contingent upon payment of such penalty, if any, as he may see fit to impose.
135. Goods relanded or transshipped from a conveyance returning to a customs-station or putting into another customs-station.- (1) If, after having cleared from any customs-station any conveyance without having discharged her cargo returns to such customs-station or ports into any other customs station, any owner of goods in such conveyance, if he desired to land or transship the same or any portion thereof for re-export, may, with the consent of the person-in-charge of the conveyance, apply to the appropriate officer in that behalf.
(2) The appropriate officer, if he grants the application, shall thereupon send an officer of customs to watch the conveyance and to take charge of such goods during such relanding or transshipment.
(2) Such goods shall not be allowed to be transshipped or re-exported free of duty by reason of the previous settlement of duty at the time of first export unless they are lodged and remain, until the time of re-export under the custody of an officer of customs, in a place appointed by the appropriate officer, or are transshipped under such custody.
(4) All expenses attending such custody shall be borne by the owner.
136. Conveyance returning to customs-station may enter and land goods.- (1) In either of the cases mentioned in section 135, the person-in-charge of the conveyance may enter such conveyance inwards and any owner of goods thereon may, with the consent of the person-in-charge of the conveyance, land the same under the provisions of this Act and the rules.
(2) In every such case, any export duty paid shall be refunded on an application made by the owner of such goods within one year of their landing and any amount paid to the owner as drawback or repayment of duty(whether of customs, excise or any other tax) shall be recovered from him or adjusted against the amount refundable.
137. Landing of goods during repairs.- (1) The appropriate officer may, on application by the person-in-charge of a conveyance which is obliged before completing her journey or voyage to put into any customs-station for repairs, permit him to land the goods or any portion thereof, and to place it in the custody of an officer of customs during such repairs, and to load and export the same free of duty.
(2) All expenses attending such custody shall be borne by the person-in-charge of the conveyance.
138. Frustrated cargo how dealt with.- (1) Where any goods are brought into a customs-station by reason of inadvertence, misdirection or untraceability of the consignee, an officer of Customs not below the rank of Additional Collector of Customs may, on application by the person-in-charge of the conveyance which brought such goods or of the consignor of such goods and subject to rules, allow export of such goods without payment of any duties (whether of import or export) chargeable thereon, provided that such goods have remained and are exported under the custody of an officer of customs.
(2) All expenses attending to such custody shall be borne by the applicant.
CHAPTER XV
SPECIAL PROVISIONS REGARDING BAGGAGE AND GOODS IMPORTED OR EXPORTED BY POST
139. Declaration by passenger or crew of baggage.- The owner of any baggage whether a passenger or a member of the crew shall, for the purposes of clearing it, make a verbal or written declaration of its contents in such manner as may be prescribed by rules to the appropriate officer and shall answer such questions as the said officer may put to him with respect to his baggage and any article contained therein or carried with him and shall produce such baggage and any such articles for examination:
Provided that where the Customs Computerized System is operational, all declarations and communications shall be electronic.
Court Decision
Neither any recovery was effected from petitioner nor there is any evidence that he procured heroin nor there is any evidence to indicate that he passed on heroin to his co - accused - petitioner is in custody since 27/5/1997 and is not required for purpose of further investigation - In these circumstances this application is allowed and petitioner is allowed bail provided he furnishes bail bonds in sum of Rs. One Lac with two sureties each in like amount to satisfaction of Trial Court. 1999 P.Cr.L.J 348
140. Determination of rate of duty in respect of baggage.- The rate of duty if any, applicable to baggage shall be the rate in force on the date on which a declaration is made in respect of such baggage under section 139:
Provided that in the case of goods cleared as mis-handled baggage or un-accompanied baggage, the rate of duty shall be the rate in force on the date on which a declaration for clearance of such goods is presented before the appropriate officer after landing of the goods.
141. Bona fide baggage exempt from duty.- The appropriate officer may, subject to the limitations, conditions and restrictions specified in the rules, pass free of duty any article in the baggage of a passenger or a member of the crew in respect of which the said officer is satisfied that it is bona fide meant for the use of such passenger or for making gift.
142. Temporary detention of baggage.- Where the baggage of a passenger contains any article which is dutiable or the import of which is prohibited or restricted and in respect of which a true declaration has been made under section 139, and about which the appropriate officer is satisfied that these were not imported with the intention of consumption in Pakistan, he may, at the request of the passenger, detain such article for the purpose of being returned to him on his leaving Pakistan.
143. Treatment of baggage of passengers or crew in transit.- Baggage of passengers and members of the crew in transit in respect of which a declaration has been made under section 139, may be permitted by the appropriate officer, subject to such limitations, conditions and restrictions as may be specified in the rules, to be so transitted without payment of duty.
144. Label or declaration in respect of goods imported or exported by post to be treated as entry.- In the case of goods imported or exported by post, any label or declaration which contains the description, quantity and value thereof shall be deemed to be an entry for import or export, as the case may be, for the purposes of this Act.
145. Rate of duty in respect of goods imported or exported by post.- (1) The rate of duty, if any, applicable to any goods imported by post shall be the rate in force on the date on which the postal authorities present to the appropriate officer the declaration or label referred to in section 144 for the purpose of assessing the duty thereon.
(2) The rate of duty, if any, applicable to any goods exported by post shall be the rate in force on the date on which the exporter delivers such goods to the postal authorities for exportation.
CHAPTER XVI
PROVISIONS RELATING TO COASTAL GOODS AND VESSELS
146. Chapter not to apply to baggage.- The provisions of this Chapter shall not apply to baggage.
147. Entry of coastal goods.- (1) The consignor of any coastal goods shall present to the appropriate officer a bill of coastal goods in the form prescribed by the Board.
(2) Every such consignor shall make a declaration on the bill of coastal goods presented by him as to the truth of the contents thereof.
Court Decision
Facts would indicate that no intention to commit fraud can be attributed to
appellants for a meagre sum--Department as well as Tribunal should have allowed
appellants allowance for absence of mens rea coupled with the fact that not
only they did not contest charge but also willingly re-paid refunds alongwith
additional tax--Nature of penalty provisions in taxing statutes and proceedings
initiated to bring them home being criminal or at least quasi criminal, proving
of mens, rea in such like proceedings in essential ingredient--Purpose of
penalty provisions as also intended deterrence would be very well served if
amount of penalty in case of every appellant was reduced to a token sum of Rs.
250/-. PLJ 2004
148. Coastal goods not to be loaded, until bill relating thereto is passed.- No vessel shall take on board any coastal goods until the bill relating to such goods has been passed by the appropriate officer and delivered to the master of the vessel by the consignor:
Provided that the appropriate officer may, in circumstances of exceptional nature, on a written application by the master of the vessel, permit loading of coastal goods pending the presentation and passing of bills relating to such goods.
149. Clearance of coastal goods at destination.- (1) The master of a vessel carrying any coastal goods shall carry on board the vessel all bills delivered to him under section 148 and shall, within twenty-four hours of arrival of the vessel at any customs-port or coastal port, deliver to the appropriate officer all bills relating to the goods which are to be unloaded at that port.
(2) Where any coastal goods are unloaded at any port, the appropriate officer shall permit their clearance if he is satisfied that they are entered in a bill delivered to him under sub-section (1).
150. Declaration concerning coasting vessel which has touched foreign port.- The master of a vessel carrying coastal goods which has touched at any foreign port immediately before its arrival at a port of Pakistan shall deliver, alongwith the bills referred to in section 149, a declaration stating that fact and indicating the particulars and specifications of the cargo, if any, discharged or taken on board at such foreign port.
151. Cargo book.- (1) There shall be kept on board every coasting vessel a cargo book stating the name of the vessel, the port at which she is registered and the name of the master.
(2) It shall be the duty of the master of every coasting vessel to enter or cause to be entered in the cargo book-
(a) the port to which and each voyage on which the vessel is bound;
(b) the respective times of departure from every port of lading and of arrival at every port of discharge;
(c) the name of every port of lading and an account of all goods taken on board at that port with a description of the packages and the quantities and description of the goods contained therein or stowed loose and the names of the respective shippers and the consignees in so far as such particulars be ascertainable;
(d) the name of every port of discharge and the respective days on which such goods or any of them are delivered out of such vessel.
(3) The entries relating to the
loading and discharge of goods shall be made respectively at the ports of
lading and
discharge.
(4) Every such master shall on demand produce the cargo book for the inspection of the appropriate officer and such officer may make such note or remark therein as he considers necessary.
152. Coastal goods not to be loaded or unloaded except at customs-port or coastal port.- No coastal goods shall be loaded on, or unloaded from, any vessel at any port other than a customs-port or a coastal port declared under section 9.
153. Coasting vessel to obtain written orders before departure.- (1) No coasting vessel which has brought or loaded any coastal goods at a customs-port or coastal port shall depart from such port until a written order to that effect has been given by the appropriate officer.
(2) No such order shall be given until -
(a) the master of the vessel has answered the questions, if any, put to him;
(b) all charges and penalties, if any, payable in respect of that vessel or by its master have been paid or the payment secured by such guarantee as the appropriate officer may direct.
154. Application of certain provisions of this Act to coastal goods.- (1) Sections 64,65 and 66 shall, so far as may be, apply to coastal goods as they apply to imported goods or goods for export.
(2) Sections 48 and 60 shall, so far as may be, apply to vessels carrying coastal goods as they apply to vessels carrying imported goods or goods for export.
(3) The Federal Government may, by notification in the official Gazette, direct that all or any of the other provisions of Chapter VII and the provisions of section 78 shall apply to coastal goods or vessels carrying coastal goods with such exceptions and modifications, if any, as may be specified in the notification.
155. - Prohibition of the coastal trade of certain goods.- No goods shall be carried coast-wise or shipped as stores in a coasting vessel contrary to any prohibition or restriction imposed by or under any law, nor shall such goods or stores be brought to any place in Pakistan for the purpose of being so carried or shipped.
CHAPTER XVI-A
PROVISIONS RELATING TO THE CUSTOMS COMPUTERIZED SYSTEM AND AUDIT AND ACCESS TO DOCUMENTS
155A. Application of the Customs Computerized System.- Notwithstanding anything hereinbefore contained, provisions of this Chapter shall apply to any customs-station equipped with the Customs Computerized System on such date as the Federal Government may, by notification in official Gazette, specify and different dates may be specified for different provisions and for different areas so as to bring the provisions relating to the Customs Computerized System in force throughout Pakistan progressively.
155B. Access to the Customs Computerized System.- No person shall transmit to, or receive information from, the Customs Computerized System unless that person is registered by the Collector as a user of the Customs Computerized System.
155C. Registered users.- (1) Any person who wishes to be registered as a user of the Customs Computerized System may apply to the Collector in the prescribed form and shall provide such information in relation to the application as is prescribed.
(2) The Collector may require an applicant for registration to give such additional information as he considers necessary for the purpose of the application.
(3) The Collector may grant the application subject to such conditions, as he deems fit or refuse the application:
Provided that no order shall be passed for refusal of application unless the applicant has been given a reasonable opportunity of being heard.
155D. Registered users to be allocated unique user identifier.- (1) Any person registered as a user of the Customs Computerized System shall be allocated a unique user identifier for use in relation to the Customs Computerized System by the Collector in such form or of such nature as the Collector may determine.
(2) The unique user identifier allocated pursuant to sub-section (1) of this section shall be used by the registered user for the purpose of transmitting information to or receiving information from the Customs Computerized System.
(3) The Collector may impose conditions on a particular registered user or on registered users generally, relating to the use and security of unique user identifiers.
155E. Use of unique user identifier.- (1) Where information is transmitted to the Customs Computerized System using a unique user identifier issued to a registered user by the Collector for that purpose, the transmission of that information shall, in the absence of proof to the contrary, be sufficient evidence that the registered user to whom the unique user identifier has been issued has transmitted that information.
(2) Where a unique user identifier is used by a person who is not entitled to use it, sub-section (1) of this section shall not apply if the registered user to whom the unique user identifier was issued has, prior to the unauthorized use of that unique user identifier, notified the Customs that the unique user identifier is no longer secure.
155F. Cancellation of registration of registered user.- (1) Where at any time the Collector is satisfied that any person who is a registered user of the Customs Computerized System, has –
(a) failed to comply with a condition of registration imposed by the Collector under sub-section (3) of section 155C of this Act; or
(b) failed to comply with, or acted in contravention of any conditions imposed by the Collector under sub-section (3) of section 155D of this act in relation to the use and security of the registered user’s unique identifier; or
(c) has been convicted of an offence under this Act, the Collector may cancel the registration of that person as a registered user by giving notice in writing to that person stating that the registration of that person is cancelled and setting out the reasons for that cancellation.
155G. Customs to keep records of transmissions.- (1) The Customs shall keep a record of every transmission sent to or received from a registered user using the Customs Computerized System.
(2) The record described in sub-section (1) of this section shall be kept for a period of five years from the date of the sending of or the receipt of the transmission, or for such other period as may be prescribed by the Board.
155H. Confidentiality of information.-- All trade information gathered by Customs during clearance of goods shall be confidential and shall not be used except for-
(a) statistical purposes by the department and other Government organizations; or
(b) purposes of comparison and evidence [by the appropriate officer of customs] as against other imports and exports; or
(c) production as evidence before a legal forum or an organization explicitly so authorized by the Federal Government;
and any disclosure, publishing or dissemination of trade information of any person except as provided above without his explicit permission to any other person shall be an offence.
155-I. Unauthorized access to or improper use of the Customs Computerized System.- (1) Every person commits an offence who.-
(a) knowingly and without lawful authority by any means gains access to or attempts to gain access to the Customs Computerized System; or
(b) having lawful access to the Customs Computerized System, knowingly uses or discloses information obtained from such a computer system for a purpose that is not authorized; or
(c) knowing that he is not authorized to do so, receives information obtained from the Customs Computerized System, and uses, discloses, publishes, or otherwise disseminates such information.
155J. Interference with the Customs Computerized System.- Every person commits an offence who–
(a) by any means knowingly falsifies any record or information stored in the Customs Computerized System; or
(b) knowingly damages or impairs the Customs Computerized System; or
(c) knowingly damages or impairs any duplicate tape or disc or other medium on which any information obtained from the Customs Computerized System is held or stored otherwise than with the permission of the Collector.
155K. Offences in relation to the security of or unauthorized use of unique user identifiers.- (1) A registered user of the Customs Computerized System who fails to comply with or acts in contravention of any condition imposed by the Collector relating to the security of that registered user’s unique user identifier commits an offence.
(2) A person who -
(a) not being a registered user, uses a unique user identifier; or
(b) being a registered user, uses the unique user identifier of any other registered user; to authenticate a transmission of information to the Customs Computerized System, commits an offence.
155L. Audit or examination of records.- (1) The appropriate officer of Customs may at any reasonable time enter a premises or place where records are kept and audit or examine those records either in relation to specific transactions or to the adequacy and integrity of the manual or electronic system or systems by which such records are created and stored and shall have free access to all books, records, documents, data and computers in the custody or control of the principals or agents and may if so necessary take custody of, or make extracts from or copies of such books, records, documents, data or computers.
(2) In all cases, except where it would defeat the purposes of the audit or examination, a reasonable advance notice regarding a visit shall be given to the principals or the agents concerned.
155M. Requisition of documents.- (1) The appropriate officer may, by notice in writing, require a person, as and when specified in the notice,--
(a) to produce for inspection by a specified Customs Officer, documents or records that the appropriate officer considers necessary or relevant to --
(i) an investigation under this Act; or
(ii) an audit under this Act; or
(iii) the recovery of dues payable under this Act;
(b) to allow the specified Customs officer to take extracts from or make copies of, documents or records of the kind referred to in paragraph (a);
(c) to appear before a specified Customs officer and answer all questions put to the person concerning --
(i) goods, or transactions relating to those goods, that are the subject of the investigation or audit, or that are relevant to the recovery of dues referred to in clause (a); or
(ii) documents or records of the kind referred to in clause (a).
(2) in this section, person includes an officer employed in a government department, corporation, local authority or an officer employed in a bank.
155N. Documents in foreign language.- Where a document in a foreign language except English is presented to a Customs officer in relation to the carrying out of any duty or the exercise of any power of the Customs under this Act or any other Act, the officer may require the person who presented the document to supply to the officer an authentic English translation of the document at the expense of the person who presented it.
155O. Authorised officer may take possession of and retain documents and records.- (1) An officer authorised in this behalf may take possession of and retain any document or record presented in connection with any entry or required to be produced under this Act.
(2) Where the authorised officer takes possession of a document or record under sub-section (1) of this section, the authorised officer shall, at the request of the person otherwise entitled to the document or record, provide that person with a copy of the document certified by or on behalf of the authorised officer under the seal of the Customs as a true copy.
(3) Every copy so certified shall be admissible as evidence in all courts and other legal forums as if it were the original.
155P. Obstructing access, altering, concealing, destruction of record.- Any person commits an offence who,-
(a) fails to operate any mechanical or electronic device, when requested by a Customs officer, on which any records are, or information is, stored for the purpose of enabling the Customs officer to obtain those records or that information.
(b) with intent to defeat the purposes of this Act, destroys, alters, or conceals any book, document, or record required to be kept under this Act, or sends or attempts to send out of Pakistan any such book, document, or record.
155Q. Electronic exchange of information and authentication through the Customs Computerized System.- Any declaration, documents or record, accounts, notice, order, payment, authentication, authorization or information required, delivered or provided by the Customs or any registered user shall be deemed to have been required, delivered, provided or done under this Act when communicated electronically through the Customs Computerized System.
155R. Correction of clerical errors.- Where the Customs Computerized System is in operation and the Collector of Customs is satisfied that incorrect data has been electronically communicated to Customs due to any clerical error, he may, for reasons to be recorded in writing, direct the correction of the said error. Except as provided herein, no person shall alter any data in the Customs Computerized System.]
CHAPTER XVII
OFFENCES AND PENALTIES
156. Punishment for offences.- (1) Whoever commits any offence described in column 1 of the Table below shall, in addition to and not in derogation of any punishment to which he may be liable under any other law, be liable to the punishment mentioned against that offence in column 2 thereof:-
TABLE
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Offences |
Penalties |
Section of this Act to which offence has reference. |
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|||||||||
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1. |
If any person contravenes any provision of this Act or any rule made thereunder, or abets any such contravention or fails to comply with any provision of this Act or any such rule with which it was his duty to comply where no express penalty has been provided elsewhere for such contravention or failure, |
Such person shall be liable to a penalty not exceeding twenty-five thousand rupees. |
General |
|
|||||||||
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2.(i) |
If any goods imported by sea or air be unloaded or attempted to be unloaded at any place other than a customs-port or customs-airport declared under section 9 for unloading of such goods; or |
Such person shall be liable to a penalty not exceeding ten thousand rupees; and such goods shall be liable to confiscation. |
9 & 10 |
|
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(ii) |
If any goods be imported by land or inland water through any route other than a route declared under clause (c) of section 9 for the import of such goods; or |
|
|
|
|||||||||
|
(iii) |
If any goods be attempted to be exported by sea or air from any place other than a customs-port or customs airport appointed for the loading of such goods; or |
|
9 & 10 |
|
|||||||||
|
(iv) |
If any goods be attempted to be exported by land or inland water through any route other than a route declared under clause (c) of section 9 for the export of such goods; or
|
|
|
|
|||||||||
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(v) |
If any imported goods be brought into any bay, gulf, creek or river for the purpose of being landed at a place other than a customs-port; or |
|
|
|
|||||||||
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(vi) |
If any goods be brought near the land frontier or the coast of Pakistan or near any bay, gulf, creek or river for the purpose of being exported from a place other than a customs-station or where any place has been approved under clause (b) of section 10 for the loading of such goods from any place other than the place so approved, |
|
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|||||||||
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3.(i) |
If any person exports or lands goods, or aids in the export of landing of goods, or knowingly keeps or conceals or knowingly permits or procures to be kept or concealed, any goods exported or landed or intended to be exported or landed contrary to the provisions of this Act; or |
such person shall be liable to a penalty not exceeding twenty-five thousand rupees. |
General |
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(ii) |
If any person be found to have been on board any conveyance liable to confiscation on account of the commission of the offence under clause 4 of this Table, while such conveyance is within any place which is not a customs-station for the export and landing of goods, |
|
9 & 10 |
|
|||||||||
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4. |
If any conveyance which has been within the limits of any customs-station in Pakistan with goods on board, be afterwards found anywhere in Pakistan with the whole or any portion of such goods missing unless the person-in-charge of the conveyance be able to account for the loss of, or deficiency in the goods, |
the duty in respect of goods so lost or deficient shall be payable by the person-in-charge of the conveyance; and such conveyance shall also be liable to confiscation. |
9 & 10 |
|
|||||||||
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5.(i) |
If any goods are unloaded from any conveyance inward bound, without the authority of the appropriate officer into any other conveyance at any place other than a place declared under section 9 for the unloading of goods; or if any goods are loaded into any conveyance outward bound from any other conveyance, without such authority, from or at any place other than a place declared under section 9 for the loading of goods; or |
the person-in-charge of every such conveyance used for irregular import or export of goods, shall be liable to a penalty not exceeding twenty-five thousand rupees; and the goods and the conveyance shall also be liable to confiscation. |
9 & 10 |
|
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(ii) |
If any goods on which drawback has been granted are put, without such authority, on board any conveyance for the purpose of being relanded, |
|
|
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6. |
If any vessel arriving at, or departing from, any customs-port fails, when so required under section 14 to bring to at any such station as has been appointed by the Collector of Customs for the boarding or landing of an officer of customs, |
the master of such vessel shall be liable to a penalty not exceeding ten thousand rupees. |
14 |
|
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7(i) |
If any vessel arriving at any customs-port, after having come to its proper place of mooring or unloading, removes from such place, except with the authority of the Conservator, obtained in accordance with the provisions of the Ports Act,1908 (XV of 1908) or other lawful authority, to some other place of mooring or unloading; or |
the master of such vessel shall be liable to a penalty not exceeding ten thousand rupees; and the vessel, if not entered, shall not be allowed to enter until the penalty is paid. |
14 |
|
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(ii) |
If any vessel not brought into port by a pilot be not anchored or moored in accordance with any direction of the Collector of Customs under section 14, |
|
|
|
|||||||||
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8.(i) |
If
any goods be smuggled into or out of |
Such goods shall be liable to confiscation and any person concerned in the offence shall be liable to a penalty not exceeding ten times the value of the goods; and upon conviction by a Special Judge he shall further be liable to imprisonment for a term not exceeding fourteen years and to fine not exceeding ten times the value of such goods, and, if the Special Judge in his discretion so orders, also to whipping : |
General |
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|
|
|
Provided that, in the case of such goods as may be notified by the Federal Government in the official Gazette, the sentence of imprisonment shall not be less than five years and the person convicted shall also be awarded sentence of whipping, and the whole or any part of his property shall also be liable to confiscation in accordance with the provisions of the Prevention of Smuggling Act,1977. |
|
|
|||||||||
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(ii) |
If the smuggled goods are narcotics drugs, psychotropic substances or controlled substances,-
(a) If the quantity of the narcotic drug, psychotropic substance of controlled substance is one hundred grams or less; (b) if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram; (c) if the quantity of the narcotic drug, psychotropic subsance or controlled substance exceeds the limit specified in clause (b);
|
such goods shall be liable to confiscatin and any person concerned in the offence shall be liable to – imprisonment which may extend to two years, or with fine, or with both;
imprisonment which may extend to seven years and shall also be liable to fine;
death or imprisonment for life, or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees; Provided that, if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life. punishment and shall not be less than imprisonment for life. |
|
|
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9. |
(i) If any goods, not being goods referred to in clause 8, are imported into or exported from Pakistan evading payment of leviable customs-duties or in violation of any prohibition or restriction on the importation or exportation of such goods imposed by or under this Act or any other law; or |
Such goods shall be liable to confiscation; and any person concerned in the offence shall also be liable to a penalty not exceeding two times the value of the goods. |
15 & 16 |
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|
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(ii) If any attempt be made so to import or export any such goods; or |
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(iii) If any such goods be found in any package produced before any officer of customs as containing no such goods; or |
|
|
|
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|
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(iv) If any such goods be found either before or after landing or shipment to have been concealed in any manner on board any conveyance within the limits of any seaport, airport, railway station or other place where conveyances are ordinarily loaded or unloaded; or |
|
|
|
|||||||||
|
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(v) If any such goods, the exportation of which is prohibited or restricted as aforesaid be brought within a customs area or to a wharf, with the intention of loading them on a conveyance for exportation in violation of such prohibition or restriction, |
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|
10. |
If, upon an application to pass any goods through the custom-house, any person not being the owner of such goods, and not having proper and sufficient authority from the owner, subscribes or attests any document relating to any goods on behalf of such owner, |
Such person shall be liable to a penalty not exceeding twenty-five thousand rupees. |
General |
|
|||||||||
|
10 (A)
|
If any condition, limitation or restriction imposed by Federal Government or by the Board for grant of partial or total exemption from customs duties is violated in respect of the goods on which exemption has been granted, |
Such goods shall be liable to confiscation and the person to whom the exemption was granted shall be liable to a penalty not exceeding ten times the value of goods; and upon conviction by a Special Judge he shall further be liable to imprisonment for a term not exceeding two years. |
19 & 20 |
|
|||||||||
|
11. |
If any goods which have been allowed temporary admission under section 21 without payment of duty subject to the condition of subsequent export be not exported, or any goods duty on which has not been paid or having been paid has been refunded be sold or transferred or otherwise disposed of in contravention of the rules or a special order made under that section, |
any person who sells, transfers or otherwise disposes of such goods or aids or abets the sale, transfer or disposal of such goods, and any person in whose possession such goods are found shall be liable to a penalty not exceeding five times the duty chargeable on such goods; and such goods shall also be liable to confiscation. |
21 |
|
|||||||||
|
12. |
If a person contravenes the provisions of section 26 and does not furnish any information as required by the rules |
such person shall be liable to a penalty not exceeding one million rupees and on conviction by a Special Judge shall be liable to imprisonment for a term not exceeding one year or with both |
26(1) and 26(4) |
|
|||||||||
|
12 A |
If any person contravenes the provisions of section 26A and does not furnish any information as required by the rules, |
such person shall be liable to a penalty not exceeding one million rupees and on conviction by a Special Judge shall be liable to imprisonment for a term not exceeding one year or with both |
26A |
|
|||||||||
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12 B |
If any person contravenes the provisions of section 26B and does not furnish any record, documents or information as required by the rules, |
such person shall be liable to a penalty not exceeding one million rupees and on conviction by a Special Judge shall be liable to imprisonment for a term not exceeding one year or with both. |
26 B |
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|||||||||
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13. |
If any person wilfully contravenes any rule relatable to section 28 with respect to any spirits, |
such person shall be liable to a penalty not exceeding ten thousand rupees; and all such spirit shall be liable to confiscation. |
28 |
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14. |
If any person commits an offence under section 32, |
such person shall be liable to a penalty not exceeding twenty five thousand rupees or three times the value of the goods in respect of which such offence is committed, whichever be greater; and such goods shall also be liable to confiscation; and upon conviction by a Special Judge he shall further be liable to imprisonment for a term not exceeding three years, or to fine, or to both. |
32 |
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14A. |
If any person commits an offence under section 32A,
|
such person shall be liable to a penalty not exceeding three times the value of the goods in respect of which such offence is committed and such goods shall also be liable to confiscation and upon conviction by a Special Judge he shall further be liable to imprisonment for a term which may extend to ten years but shall not be less than five years or to fine, or to both. |
32A.
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15. |
If any goods in respect of which drawback has been paid or any warehoused goods cleared for exportation are not duly exported or after being exported are unloaded or relanded at any other place in Pakistan otherwise than in accordance with the provisions of this Act and the rules, |
any person who fails to export such goods or who unloads or relands the goods or any person who aids or abets the evasion of export of such unloading or relanding shall be liable to a penalty not exceeding three times the value of such goods or twenty five thousand rupees, whichever be higher; and the goods which are not so exported or which are so unloaded or relanded together with the conveyance from which they are unloaded or relanded shall also be liable to confiscation. |
35 & 105 |
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16. |
If any provisions or stores on which drawback has been paid or on which duty has not been paid for reason of their being provisions or stores meant, to be exported for use on board are not loaded on board or after being loaded are subsequently unloaded without the permission of the appropriate officer, |
such provisions or stores shall be liable to confiscation. |
24 & 35 |
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17. |
If any person fraudulently claims drawback on any goods on which drawback is disallowed under section 39 or includes any such goods in his claim for drawback, |
such person shall be liable to penalty not exceeding twenty-five thousand rupees, and such goods shall also be liable to confiscation. |
39 |
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18. |
If, in any river or port wherein a place has been fixed under section 43 by the Board, any vessel arriving passes beyond such place, before delivery of a manifest to the pilot, officer of customs, or other person duly authorized to receive the same, |
the master of such vessels and master of the pilot shall be liable to a penalty not exceeding twenty-five thousand rupees. |
43 |
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19. |
If the master of any vessel arriving, which remains outside or below any place fixed, under section 43, wilfully omits, for twenty-four hours after anchoring, to deliver a manifest as required by this Act, |
such master shall be liable to penalty not exceeding twenty five thousand rupees. |
43 |
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20. |
If, after any vessel has entered any customs-port in which a place has not been fixed under section 43, the master of such vessel wilfully omits, for twenty-four hours after anchoring, to deliver a manifest as required by this Act, |
such master shall be liable to a penalty not exceeding twenty five thousand rupees. |
43 |
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21. |
If, after any conveyance other than a vessel has entered any land customs-station or customs-airport, the person-in-charge of such conveyance wilfully omits, for twenty-four hours after arrival, to deliver a manifest as required by this Act, |
such person shall be liable to a penalty not exceeding twenty five thousand rupees. |
44 |
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22. |
If any person required by this Act to receive an import manifest from the person-in-charge of a conveyance refuses to do so, or fails to countersign the same or to enter thereon the particulars referred to in section 46, |
such person shall be liable to a penalty not exceeding ten thousand rupees. |
43 & 46 |
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23. (i) |
If, any import or export manifest delivered under any provision of this Act is not signed by the person delivering the same or is not in the form prescribed under this Act or does not contain the particulars of the conveyance, goods and journey required to be stated in such manifest by or under this Act, or |
the person delivering such manifest shall be liable to a penalty not exceeding twenty-five thousand rupees. |
45 & 53 |
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(ii) |
If any manifest so delivered does not contain a specification true to the best of such person’s knowledge of all goods imported or to be exported in such conveyance, |
|
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24(i)
(ii) |
If any goods entered in the import manifest of a conveyance are not found in that conveyance; or If the quantity found in the conveyance, container or any other package is short, and the shortage is not accounted for to the satisfaction of the officer-in-charge of the custom-house, |
the person-in-charge of such conveyance shall be liable to a penalty not exceeding twice the amount of duty chargeable on the goods not found on the conveyance or, if such goods are not dutiable or the duty thereon cannot be ascertained, to a penalty not exceeding fifteen thousand rupees for every missing or deficient package or separate article, and in the case of bulk goods to a penalty not exceeding the value of the goods, or twenty-five thousand rupees, whichever be higher. |
45,53 & 55 |
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25. |
If any bulk is broken on a vessel in contravention of section 47 or without a special pass granted under section 49, |
the master of such vessel shall be liable to a penalty not exceeding twenty-five thousand rupees. |
47 & 49 |
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26. (i) |
If any bill of lading or copy required under section 48, is false and the person-in-charge of the conveyance is unable to satisfy the appropriate officer that he was not aware of the fact; or if any such bill or copy has been altered with fraudulent intent; or |
the person-in-charge of such conveyance shall be liable to penalty not exceeding twenty-five thousand rupees. |
48 |
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(ii) |
If the goods mentioned in any such bill or copy have not been bona fide shipped or loaded as shown therein; or if any such bill of landing or any bill of lading of which a copy is delivered has not been made previously to the departure of the conveyance from the place where the goods referred to in such bill of lading were shipped or loaded; or, |
|
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(iii) |
If any part of the cargo or goods has been stayed, destroyed or thrown over board, or if any package has been opened and any part of the cargo or goods be not accounted for to the satisfaction of the appropriate officer, |
|
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27. |
If the person-in-charge of a conveyance attempts to depart from the customs-station without a port-clearance or written permission of the appropriate officer, granted under section 51 or section 52, as the case may be, |
such person shall be liable to a penalty not exceeding twenty-five thousand rupees. |
51 & 52 |
|
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28. |
If any conveyance actually departs from a customs-station without obtaining the port-clearance or the written permission of the appropriate officer, as the case may be, |
the person-in-charge of such conveyance shall be liable to a penalty not exceeding twenty- five thousand rupees. |
51 & 52 |
|||||||||
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29. |
If
any pilot takes charge of any vessel proceeding out of |
such pilot shall be liable to a penalty not exceeding twenty- five thousand rupees. |
51 |
|||||||||
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30. |
If the person-in-charge of a conveyance refuses to receive on board any officer of customs deputed under section 60, |
such person shall be liable to a penalty not exceeding ten thousand rupees for each day during which such officer is not received on board the conveyance, and the conveyance if not entered shall not be allowed to enter until such penalty is paid. |
61 |
|
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31. |
If the master of a vessel or the person-in-charge of a conveyance other than a vessel or an aircraft refuses to provide such officer with suitable accommodation and adequate quantity of fresh water, |
such master or person shall, in each such case, be liable to a penalty not exceeding ten thousand rupees. |
61 |
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32. (i) |
If the person-in-charge of any conveyance refuses to allow such conveyance or any box, place or close receptacle therein to be searched when so required by an officer of customs bearing a written order to search; or |
Such person shall be liable to a penalty not exceeding twenty five thousand rupees. |
62 |
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(ii) |
If an officer of customs places any lock, mark or seal upon any goods in any conveyance, and such lock, mark or seal is wilfully opened, altered or broken before due delivery of such goods; or |
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(iii) |
If any such goods are secretly conveyed away; or |
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(iv) |
If any such hatchway or entrance to the hold of a conveyance after having been fastened down by an officer of customs is opened without his permission, |
|
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33. |
If the person-in-charge of a conveyance laid up by the withdrawal of the officer of customs shall, before application is made by him for an officer of customs to superintend the receipt of goods, causes or suffers to be put on board such conveyance and goods what ever in contravention of section 64, |
such person shall be liable to a penalty not exceeding twenty-five thousand rupees and the goods if protected by a pass or written order shall be liable to be relanded for examination at the expense of the person-in-charge and, if not protected by a pass or written order, shall be liable to confiscation. |
64. |
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34. |
If the person-in-charge of a conveyance, in any case other than that provided for in clause 33 of this Table, causes or suffers any goods to be discharged, put on board the conveyance or water-borne contrary to the provisions of section 64 or section 65 or any rules relating to baggage, |
such person shall be liable to a penalty not exceeding twenty-five thousand rupees; and all goods so discharged, put on board the conveyance or water-borne shall be liable to confiscation. |
64,65 & 141 |
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35(i) |
If, when a boat-note is required by section 68, any goods water-borne for the purpose of being landed from any vessel and warehoused or passed for importation, or of being shipped for exportation, be found without such note; or |
the person by whose authority the goods are being landed or shipped, and the person-in-charge of the boat, shall each be liable to a penalty not exceeding twice the amount of duty leviable on the goods, or, if such goods be non-dutiable to a penalty not exceeding two thousand rupees; and such goods shall also be liable to confiscation. |
68 |
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(ii) |
If any goods are found on board any boat in excess of such boat-note, whether such goods are intended to be landed, from, or to be shipped on board any vessel, |
|
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36. |
If any person refuses to receive, or fails to sign, or to note the prescribed particulars upon, any boat-note, as required by section 68, or if any master or officer of a vessel receiving the same fails to deliver it when required so to do by any officer of customs authorized to make such requisitions, |
such person, master or officer shall be liable to a penalty not exceeding ten thousand rupees. |
68 |
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37(i) |
If any goods are, without permission, shipped or loaded on board a conveyance proceeding out of Pakistan or are water-borne to be so shipped or loaded or are landed except from or at a wharf or other place duly appointed for the purpose; or |
the person by whose authority the goods are shipped, loaded, landed, water-borne or transshipped and the person-in-charge of the conveyance employed in conveying them shall each be liable to a penalty not exceeding five times the value of the goods; and such goods shall also be liable to confiscation. |
66,69 & 70 |
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(ii) |
If any goods water-borne for the purpose of being landed or shipped or loaded are not landed, shipped or loaded without unnecessary delay; or |
|
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|
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(iii) |
if the boat containing such goods be found out of the proper track between the vessel and the wharf or other proper place of landing or shipping or loading and such deviation be not accounted for to the satisfaction of the appropriate officer; or |
|
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(iv) |
if any goods are transshipped contrary to the provisions of section 70, |
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38. |
If, after the issue of a notification under section 71 with regard to any port, any goods are found within the limits of such port on board any boat not duly licensed and registered, |
the owner or the person-in-charge of the boat shall be liable to a penalty not exceeding two thousand rupees; and such goods shall also be liable to confiscation, unless they are covered by a special permit of the Collector of Customs. |
71 |
|
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39. |
If any boat or vessel not exceeding one hundred tons does not comply with the rules relatable to section 72, |
such boat or such vessel shall be liable to confiscation. |
72 |
|
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39A. |
The person incharge of a conveyance or master or agent or owner of the conveyance who fails to supply the information or documents suo moto |
such person, master, agent or owner shall be liable to penalty not exceeding two hundred thousand rupees and on conviction by a Special Judge, he shall further be liable to imprisonment for a term which may extend to three years on with fine, or with both. |
72A |
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40. |
If any person-in-charge of any conveyance unloads or suffers to be unloaded any goods not duly entered in the manifest of such conveyance, |
such person shall be liable to a penalty not exceeding twenty-five thousand rupees. |
45 & 75 |
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41. |
If any goods are found concealed in any place, box or close receptacle in any conveyance and are not duly accounted for to the satisfaction of the officer-in-charge of the custom- house, |
such goods shall be liable to confiscation. |
General |
|
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42. |
If any goods are found on board any conveyance in excess of those entered in the manifest, or not corresponding with the specification therein contained, |
such goods shall be liable to confiscation. |
45 & 75 |
|
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43. |
If any goods, after having landed and before they have been processed and cleared by the Customs, are by the owner or any other person, fraudulently concealed in, or attempted to remove from the bonded area of any Port. Airport and Dry port, or abstracted from any package or transferred from one package to another, or otherwise, for the purpose of illegal removal or concealment, with the intention of defrauding the revenue, |
if the goods cannot be recovered, the owner shall be liable, in addition to full duty, to a penalty not exceeding five times the amount of such duty, or if such goods are not dutiable or duty thereon cannot be ascertained, to a penalty not exceeding one hundred thousand rupees, for every missing or deficient package or separate article, and in the case of bulk goods to a penalty not exceeding one hundred thousand rupees or three times of the value of the goods, whichever be higher. And the owner or any person guilty of such removal,concealment, abstraction or transferment and every person aiding or abetting him shall including the custodian, upon conviction by a special judge, be liable to imprisonment for a term not exceeding five years. |
79, 80 |
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44. |
If, in relation to any goods in respect of which a declaration is required on a bill of entry or a bill of export or a goods declaration, as the case may be, it be found that the goods have apparently been packed so as to deceive the officer of customs, |
the owner of the goods and every person who aids or abets such packing shall be liable to a penalty not exceeding twenty five thousand rupees or five times the duty and taxes involved whichever is higher; and such goods shall also be liable to confiscation. |
79, 131 |
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45. |
If any goods have been declared on a goods declaration, as the case may be, and it is found that goods not so declared have been concealed in, or mixed within the goods so declared, |
the owner of such goods and every person who aids or abets such concealment or mixing of goods shall be liable to a penalty not exceeding twenty five thousand rupees or five times the duty and taxes involved whichever is higher; and both the goods so declared and the goods not so declared shall be liable to confiscation. |
79, 79A, 131 and 131A |
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46. |
If, when goods are passed by bale or by package, any omission or mis-description thereof tending to injure the revenue be discovered, |
the person guilty of such omission or mis-description shall be liable to a penalty not exceeding ten times the amount of duty which might have been lost to Government by such omission or mis-description, unless it be proved to the satisfaction of the officer-in-charge of the custom-house that the variance was accidental. |
79 & 88 |
|
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47. |
If, without entry duly made, any goods are taken or passed out of any customs-station, |
the person so taking or passing such goods along with the custodian of the goods shall, in every such case, be liable to a penalty not exceeding five times the value of goods; and such goods shall also be liable to confiscation and upon conviction by a Special Judge be further liable to imprisonment for a term not exceeding five years. |
79 |
|
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|
47 A |
If the goods declaration is not filed within the prescribed period of fifteen days, |
the owner of such goods shall be liable to a penalty which may extend to fifteen thousand rupees. |
79 |
|
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|
48. |
If any prohibited, restricted or dutiable goods are found, either before or after landing, concealed in any passenger’s baggage, |
the passenger shall be liable to a penalty not exceeding five times the value of the goods; and such goods shall also be liable to confiscation. |
General |
|
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|
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49. |
If any goods entered to be warehoused are carried into the warehouse unless with the authority, or under the care, of the appropriate officer, and in such manner, by such persons, within such time, and by such roads or ways, as such officer directs, |
any person so carrying them shall be liable to a penalty not exceeding twenty five thousand rupees; and such goods shall also be liable to confiscation. |
87 |
|
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|
|
50. |
If any goods entered to be warehoused are not duly warehoused in pursuance of such entry, or are withheld, or removed from any proper place of examination before they have been examined and certified by the appropriate officer, |
such goods shall be deemed not to have been duly warehoused, and shall be liable to confiscation and any person quilty of such offence, aiding or abetting shall be liable to a penalty not exceeding five hundred thousand rupees . |
88 |
|
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|
|
51. |
If any warehoused goods be not warehoused in accordance with the provisions of Chapter XI, |
such goods shall be liable to confiscation |
Chapter XI |
|
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|
|
52. |
If the licensee of any private warehouse licensed under this Act does not open the same when required so to do by any officer entitled to have access thereto, or, upon demand made by any such officer, refuses access to any such officer, |
such licensee shall be liable to a penalty not exceeding twenty five thousand rupees, and shall further be liable to have his licence forthwith cancelled. |
91 |
|
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|
|
53. |
If the licensee of any public warehouse, or the licensee of any private warehouse, neglects to show the goods warehoused therein, so that easy access may be had to every package and parcel thereof, |
such licensee shall, for every such neglect, be liable to a penalty not exceeding one thousand rupees. |
Chapter XI |
|
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|
|
54. |
If the owner of any warehoused goods, or any person in the employment of such owner, clandestinely opens any warehouse, or, except in the presence of the appropriate officer, gains access to his goods, |
such owner or person shall in every such case, be liable to penalty not exceeding twenty five thousand rupees. |
93 |
|
||||||||
|
|
55(i) |
If any warehoused goods are opened in contravention of the provisions of section 92; or |
such goods shall be liable to confiscation. |
92 & 94 |
|
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|
|
(ii) |
if any alteration be made in such goods or in the packing thereof, except as provided in section 94, |
|
|
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|
|
56. |
If any warehoused goods that have been delivered as stores and provisions for use on board a conveyance under the authority of this Act are relanded, sold or disposed of in Pakistan without due entry and payment of duty, |
the person-in-charge of the conveyance shall be liable to a penalty not exceeding twenty five thousand rupees; and such goods shall also be liable to confiscation. |
106 |
|
||||||||
|
|
57. |
If any goods, lodged in a private warehouse are found at the time of delivery therefrom to be deficient, and such deficiency is not due solely to natural loss, as allowed under section 110, |
the licensee of such warehouse shall, unless the deficiency be accounted for to the satisfaction of the appropriate officer, be liable to a penalty equal to five times the duty chargeable on the goods so deficient. |
116 |
|
||||||||
|
|
58. |
If the licensee of any public warehouse, or the licensee of any private warehouse, fails, on the requisition of any officer of customs, to produce any goods which have been deposited in such warehouse, and which have not been duly cleared and delivered therefrom, and is unable to account for such failure to the satisfaction of the appropriate officer, |
such licensee shall for every such failure, be liable to pay the duties due on such goods, and also a penalty not exceeding one thousand rupees in respect of every package or parcel so missing or deficient. |
116 |
|
||||||||
|
|
59. |
If any goods, after being duly warehoused, are fraudulently concealed in, or removed from the warehouse, or abstracted from any package, or transferred from one package to another, or otherwise, for the purpose of illegal removal or concealment, |
any person guilty of such removal, concealment, abstraction or transferment and every person aiding or abetting him shall be liable to a penalty not exceeding twenty five thousand rupees; and upon conviction by a Special Judge, he shall further be liable to imprisonment for a term not exceeding five years, or to fine, or to both. |
Chapter XI |
|
||||||||
|
|
60. |
If any goods lodged in a private warehouse are found to exceed the registered quantity, |
such excess, unless accounted for to the satisfaction of the officer-in-charge of the custom-house, shall be charged with five times the duty leviable thereon. |
Chapter XI |
|
||||||||
|
|
61. |
If any goods be removed from the warehouse in which they were originally deposited, except in the presence, or with the sanction, of the appropriate officer or under the proper authority for their delivery, |
any person so removing them shall be liable to a penalty not exceeding one hundred thousand rupees; and such goods shall also be liable to confiscation. |
Chapter XI |
|
||||||||
|
|
62. |
If any person illegally takes any goods out of any warehouse without payment of duty or replaces with other goods, or aids, assists or is otherwise concerned therein, |
such person shall be liable to a penalty not exceeding five hundred thousand rupees; and upon conviction by a Special Judge, he shall be further liable to imprisonment for a term not exceeding five years or to fine or to both. |
Chapter XI |
|
||||||||
|
|
63. |
If any person contravenes any rule relating to transhipment or tranships goods not allowed to be transhipped, |
such person including the custodian and the inland carrier shall be liable to penalty not exceeding five hundred thousand rupees or five times the amount of duties and taxes involved whichever is higher and upon conviction by a Special Judge be further liable to imprisonment for a term not exceeding two years; and any goods in respect of which such offence has been committed and the conveyance illegally carrying such goods shall also be liable to confiscation. |
121 |
|
||||||||
|
|
64. |
If any person contravenes any rule or condition relatable to section 128 or section 129, |
such person shall be liable to a penalty not exceeding twenty five thousand rupees; and any goods in respect of which such offence has been committed shall also be liable to confiscation. |
128 & 129 |
|
||||||||
|
|
65. |
If any goods be taken on board any conveyance at any customs-station in contravention of section 130, |
the person-in-charge of such conveyance shall be liable to a penalty not exceeding twenty five thousand rupees. |
130 |
|
||||||||
|
|
66. |
If any goods not specified in a duly-passed bill of export or goods declaration or not permitted to be exported are taken on board any conveyance, contrary to the provisions of section 131, |
the person-in-charge of such conveyance along with the custodian shall be liable to a penalty not exceeding one hundred thousand rupees and upon conviction by a Special Judge be further liable to imprisonment for a term not exceeding two years and the conveyance involved shall be liable to confiscation. |
131 |
|
||||||||
|
|
67. |
If any goods specified in the manifest of any conveyance or in any bill of export or goods declaration are not duly put on board before the departure of such conveyance, or are relanded and notice of such short loading or relanding be not given as required by section 134, |
the owner of such goods shall be liable to a penalty not exceeding two thousand rupees; and such goods shall also be liable to confiscation. |
134 |
|
||||||||
|
|
68. |
If any goods duly put on board any conveyance be landed, except under sections 135,136 or 137, at any place other than that for which they have been cleared, |
the person-in-charge of such conveyance shall, unless the landing be accounted for to the satisfaction of the appropriate officer, be liable to a penalty not exceeding three times the value of the goods so landed. |
135,136 &137 |
|
||||||||
|
|
69. |
If any goods on account of which drawback has been paid be not found on board any conveyance referred to in section 136, |
the person-in-charge of such conveyance shall, unless the fact be accounted for to the satisfaction of the appropriate officer, be liable to a penalty not exceeding the value of such goods. |
136 |
|
||||||||
|
|
70. |
If the owner of any baggage fails to make correct declaration of its contents or refuses to answer any questions put to him by the appropriate officer with respect to his baggage or any of its contents including articles carried with him or fails to produce the baggage or any such article for examination, |
such owner shall be liable to a penalty not exceeding three times the value of the goods, in respect of which no declaration or incorrect declaration has been made or in respect of which he refuses or fails to answer any question, or which he fails to produce for examination; and such goods shall also be liable to confiscation. |
139 |
|
||||||||
|
|
71. |
If any consignor in relation to coastal goods fails to make an entry thereof in the prescribed bill as required under section 147, or while presenting such bill fails to make and subscribe to a declaration as to the truth of the contents of such bill, |
such consignor shall be liable to a penalty not exceeding twenty-five thousand rupees. |
147 |
|
||||||||
|
|
72. |
If in the case of any coasting vessel the provisions of sections 148, 149, 150,151, 152 and 153 are not compiled with, |
the master of the vessel shall in each case be liable to a penalty not exceeding fifteen thousand rupees. |
148 to 153 |
|
||||||||
|
|
73(i) |
If the master of any coasting vessel fails correctly to keep, or to cause to be kept the cargo book, or to produce the same on demand; or |
the master shall be liable to a penalty not exceeding ten thousand rupees. |
151 |
|
||||||||
|
|
(ii)
(iii)
|
if at any time there be found on board any such vessel any goods not entered in such book as laden, or any goods noted as delivered; or if any goods entered as laden, and not noted as delivered, be not on board, |
|
|
|
||||||||
|
|
74. |
If any person contravenes the provisions of section 155 or aids in or abets such contravention,
|
such person shall, except where any fine has been expressly provided for the violation of the prohibition or restriction in the law that imposes it, be liable to a penalty not exceeding ten thousand rupees; and the goods in respect of which such contravention is committed shall also be liable to confiscation. |
155 |
|
||||||||
|
|
75. |
If
any rule which prevents or regulates the taking of any coastal goods out of |
the master of the vessel carrying such goods shall be liable to a penalty not exceeding twentiy-five thousand rupees, and where such contravention results in the loss of any customs-duty he shall further be liable to a penalty not exceeding three times such duty; and the goods in respect of which such contravention is committed shall also be liable to confiscation. |
155 |
|
||||||||
|
|
76(i). |
If, contrary to the provisions of this Act or any other law for the time being in force, any goods are laden on board any vessel in any customs-port or carried coast-wise, or |
the master of such vessel shall be liable to a penalty not exceeding ten thousand rupees; and such goods shall also be liable to confiscation. |
Chapter XVI |
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(ii) |
If any goods which have been brought coast-wise are so unladen in any such port; or |
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(iii) |
If any goods are found on board any coasting vessel without being entered in the manifest or cargo book, as the case may be, of such vessel, |
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77 (i) |
If any person counterfeits, falsifies or fraudulently alters or destroys any declaration, statement or document in the transaction of any business relating to the customs or any seal, signature, initials or other mark made or impressed by any officer of customs in the transaction of any business relating to customs; or |
such person shall, on conviction of any such offence before a Special Judge be liable to imprisonment for a term not exceeding three years, or to fine, or to both. |
General |
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(ii) |
being required under this Act to produce any document, refuses or neglects to produce such document; or |
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(iii) |
being required under this Act to answer any question put to him by an officer of customs, does not correctly answer such question, |
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78. |
If any person on board any conveyance in any customs-station or who has landed from any such conveyance, upon being asked by an officer of customs whether he has dutiable or prohibited goods about his person or in his possession, declares that he has not, and if any such goods are, after such denial, found about his person or in his possession, |
such person shall be liable to a penalty not exceeding three times the value of such goods; and such goods shall also be liable to confiscation. |
General |
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79(i) |
If any officer of customs required any person to be searched for dutiable or prohibited goods, or any documents connected with such goods, or to be detained, without having reasonable grounds to believe that he has such goods or documents about his person; or |
such officer shall, on conviction before a Special Judge, be liable to a fine not exceeding twenty five thousand rupees. |
158 |
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(ii) |
arrest any person without having reasonable grounds to believe that he has been guilty of an offence relating to customs, |
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80. |
If, save for good and sufficient cause, any conveyance having been summoned under section 164 to stop fails to do so, |
the person-in-charge of such conveyance shall be liable to a penalty not exceeding twenty five thousand rupees; and such conveyance shall also be liable to confiscation. |
164 |
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81. |
If any officer of customs, or other person duly employed for the prevention of smuggling, is guilty of a wilful breach of the provisions of this Act, |
such officer or person shall, on conviction before a Special Judge, be liable to imprisonment for a term not exceeding three years, or to fine, or to both. |
General |
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82. |
If any officer of customs, or other person duly employed for the prevention of smuggling, practices, or attempts to practice, any fraud for the purpose of injuring the customs revenue, or abets or connives at any such fraud, or any attempt to practice any such fraud, |
such officer or person shall, on conviction before a Special Judge, be liable to imprisonment for a term not exceeding three years, or to fine, or to both. |
General |
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83. |
If any police-officer, whose duty it is, under section 170 , to send a written notice or cause goods to be conveyed to a custom-house, neglects so to do, |
such officer shall, on conviction before Special Judge, be liable to a penalty not exceeding two thousand rupees. |
170 |
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84. |
If, in relation to any goods imported or intended to be exported by land, an order permitting clearance under section 83 or section 131 is not produced, |
the person concerned shall be liable to a penalty not exceeding twenty-five thousand rupees, and such goods shall also be liable to confiscation. |
83 & 131 |
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85. |
If any person knowingly- (a) obstructs, hinders, falsely accuses or implicates, threatens, molests or assaults an official of Customs or any person while duly engaged or subsequently in the discharge of any duty or the exercise of any power imposed or conferred on him by or under any of the provisions of this Act or any person acting in his aid; or |
such person shall, on conviction before a Special Judge be liable to a fine of twenty-five thousand rupees, and to imprisonment for a term not exceeding two years. |
General |
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(b) does anything which impedes or is calculated to impede, the carrying out of any search for any thing required in an inquiry,investigatio, audit of goods liable to confiscation under this Act or the detention, seizure or removal of any such thing; or |
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(c) rescues, damages or destroys anything so liable to confiscation or does anything calculated to prevent the procuring or giving of evidence as to whether or not anything is so liable to confiscation; or |
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(d) prevents the detention of any person by a person duly engaged or acting as aforesaid, or rescues any person so detained; or |
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(e) attempts to do any of the aforementioned acts or things, or who aids or abets, or attempts to aid or abet, the doing of any of them, |
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86. |
If any person, having knowledge of the commission of any offence under this Act or of an attempt or likely attempt to commit any such offence, fails to give information in writing to the officer-in-charge of the nearest custom-house or customs-station, or if there be no custom-house or customs-station at a reasonably convenient distance to the officer-in-charge of the nearest police-station, |
such person shall, on conviction before a Special Judge, be liable to imprisonment for a term which may extend to one year, or to a fine not exceeding twenty-five thousand rupees, or to both. |
192 |
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87(i) |
If any officer of customs, except in the discharge in good faith of his duty as such officer, discloses any particulars learnt by him in his official capacity in respect of any goods; or |
such officer shall, on conviction before a Special Judge, be liable to a fine not exceeding twenty-five thousand rupees. |
199 |
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(ii) |
If any officer of customs, except as permitted by this Act, parts with the possession of any samples delivered to him in his official capacity, |
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88. |
If any person not holding a licence granted under section 207 acts as an agent for the transaction of business as therein mentioned, |
such person shall be liable to a penalty not exceeding ten thousand rupees. |
207 |
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89. (i) |
If any person without lawful excuse, the proof of which shall be on such person, acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing, or in any manner dealing with smuggled goods or any goods in respect to which there may be reasonable suspicion that they are smuggled goods; |
such goods shall be liable to confiscation and any person concerned in the offence shall be liable to a penalty not exceeding ten times the value of the goods; and, where the value of such goods exceeds one hundred thousand rupees, he shall further be liable, upon conviction by a Special Judge, to imprisonment for a term not exceeding six years and to a fine not exceeding ten times the value of such goods and if the Special Judge in his decision so orders also to whipping. |
General |
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(ii) |
If the smugled goods are narcotics drugs, psychotropic substances or controlled substances,- |
such goods shall be liable to confiscation and any person concerned in the offence shall be liable to -- |
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(a) If the quantity of the narcotic drug, psychotropic substance of controlled substance is one hundred grams or less; (b) If any quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one huindred grams but does not exceed one kilogram; |
imprisonment which may extend to two years, or with fine, or with both;
imprisonment which may extend to seven years and shall also be liable to fine;
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(c) if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b) |
death or imprisonment for life, or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be up to one million rupees; Provided that, if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life. |
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Provided that if the smuggled goods be gold bullion or silver bullion the onus of proving the plea, that such bullion was obtained by processing or other means employed in Pakistan and not by smuggling shall be upon the person taking that plea, |
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90. |
If any person, without lawful excuse the proof of which shall be on such person, acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any goods, not being goods referred to in clause 89, which have been unlawfully removed from a warehouse, or which are chargeable with a duty which has not been paid, or with respect to the importation or exportation of which there is a reasonable suspicion that any prohibition or restriction for the time being in force under or by virtue of this Act has been contravened, or if any person is in relation to any such goods in any way, without lawful excuse, the proof of which shall be on such person, concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon, or of any such prohibition or restriction as aforesaid or of any provision of this Act applicable to those goods, |
such goods shall be liable to confiscation, and any person concerned shall also be liable to a penalty not exceeding ten times the value of the goods. |
General |
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91. |
If any person, without lawful excuse, the proof of which shall be on such person, brings into Pakistan, or is in any way concerned with the bringing into Pakistan of, or who has in his possession, any bill-heading, or other paper appearing to be a heading or blank, capable of being filled up and used as an invoice, purporting to be made out by or on behalf of a person or firm other than the one from whose possession the bill-heading or other paper has been recovered, or who has brought it into Pakistan, or on whose behalf it has been brought into Pakistan, |
such goods shall be liable to confiscation and any person concerned in the offence shall be liable to a penalty not exceeding twenty-five thousand rupees; and, upon conviction by a Special Judge, he shall further be liable to imprisonment for a term not exceeding one year or to a fine not exceeding twenty-five thousand rupees, or to both. |
General |
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92. |
Any person who bears himself in disguise or being armed with an offensive weapon, intimidates any person duly engaged in the discharge of any duty or the exercise of any power imposed or conferred on him by or under any of the provisions of this Act or any person acting in his aid or uses such weapon against any such person- |
such person shall be liable, on conviction before, a Special Judge to imprisonment for a term not exceeding seven years and, if the Special Judge in his discretion so orders, to whipping. |
General |
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(a) while he is concerned in the movement, carriage or concealment of any goods with the intent of violating any prohibition or restriction on the importation or exportation thereof imposed by this or any other Act or with the intent of passing such goods without paying the duty chargeable thereon or without giving security for its payment; or |
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(b) while in possession of any goods liable to confiscation under this Act, |
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93. |
If any person, by any means, makes any signal or any message from any part of Pakistan or from any ship or aircraft for the information of a person in any ship or aircraft, or across the frontier, being a signal or message connected with the smuggling or intended smuggling of goods into or out of Pakistan, whether or not the person for whom the signal or message intended is in a position to receive it or is actually engaged at the time in smuggling goods, |
such person shall, on conviction before a Special Judge, be liable to imprisonment for a term not exceeding three years, or to fine not exceeding twenty-five thousand rupees, or to both; and any equipment or apparatus used for sending the signal or message shall also be liable to confiscation. |
General |
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Explanation:- If in any proceedings under this clause, any question arises as to whether any signal or message was such a signal or message as aforesaid, the burden of proof shall lie upon the defendant, |
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94. |
If within the limits of Pakistan, any person deposits, places and carries, or causes to be deposited, plaaced or carried in, through or into any building withon one mile of the frontier between Pakistan and any foreign country, or in, through or into any premises connected with any such building, any dutiable goods on which duty has not been paid, or any goods imported in contravention of any of the provisions of this Act or any other law, |
Such person shall, on conviction before a Special Judge, be liable to imprisonment for a term not exceeding three years, or to a fine not exceeding twenty-five thousand rupees, or to both. |
General |
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95. |
If
within one mile of the frontier between |
such building shall be liable to confiscation. |
General |
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96. |
If any person does not maintain and keep record under the provisions of section 211, |
such person shall be liable to a penalty which may extend to one million rupees |
211 |
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97. |
If any person contravenes any of the provisions of a notification under section 212 or of the rules regulating business connected with gold or silver or precious stones or ornaments made of gold or silver or precious stones within fifteen miles of the frontier of Pakistan, |
such person shall, on conviction before a Special Judge, be liable to imprisonment for a term not exceeding three years, and to a fine not exceeding fifty thousand rupees. |
212 |
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98. |
If any person obstructs an officer acting in the exercise of the powers conferred by sub-section (2) of section 189, |
such person shall, on conviction before a Special Judge, be liable to imprisonment for a term not exceeding two years, or to fine, or to both. |
189 |
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99. |
If defaulter fails to pay outstanding arrears as defined in clause (w) of section (2) of the Customs Act,1969, |
such person, upon conviction by a Special Judge, shall be liable to imprisonment for a term not exceeding five years or to a fine not exceeding three times the amount due from him, or both. |
202 |
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100. |
If any person discloses, publishes or otherwise disseminates trade information of any person to any other person except as authorized, |
such person shall be liable to a penalty not exceeding two hundred thousand rupees and on conviction before a Special Judge to imprisonment for a term not exceeding three years or both. |
155H |
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101. |
Unauthorized access to or improper use of the Customs Computerized System by any person, |
such person shall be liable to a penalty not exceeding two hundred thousand rupees and on conviction before a Special Judge to imprisonment for a term not exceeding three years or both. |
155-I |
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102. |
If any person interferes with the Customs Computerized System, |
such person shall be liable to a penalty not exceeding two hundred thousand rupees and on conviction before a Special Judge to imprisonment for a term not exceeding two years or both. |
155J |
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103. |
Unauthorized use of unique user identifier by any person, |
such person shall be liable to a penalty not exceeding one hundred thousand rupees. |
155K |
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104. |
If any person,- (a) fails to operate any mechanical or electronic device, when requested by a Customs Officer, on which any records are, or information is, stored for the purpose of enabling the Customs Officer to obtain those records or that information; or |
such person shall be liable to a penalty not exceeding one hundred thousand rupees. |
155P |
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(b) with intent to defeat the purposes of this Act, destroys, alters, or conceals any book, document, or record required to be kept under this Act, or sends or attempts to send out of Pakistan any such book, document, or record. |
such person shall be liable to a penalty not exceeding two hundred thousand rupees and on conviction before a Special Judge to imprisonment for a term not exceeding two year, or both. |
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Nothing in Column 3 of the above Table Shall be deemed to have the force of law.
Explanation.- For the purposes of any penal provisions of this Act, the offence of contravening, in respect of any goods, any of the provisions of this Act or the rules or any other law for the time being in force, shall be deemed to have been committed when, in the case of import, any vessel containing such goods arrives within twelve nautical miles of the sea coast of Pakistan (each nautical mile measuring six thousand and eighty feet) or when, in the case of export, such goods have been loaded on any conveyance for transport to any destination outside Pakistan, or when in either case, the connected customs documents have been presented to the appropriate officer :
Provided that in the case of accompanied baggage or any unmanifested goods meant for export, the offence shall be deemed to have been committed when such baggage or goods enter the customs-area or are delivered to the carrier of the conveyance.
(2) Where any goods specified in clause (s) of section 2 or in a notification issued there-under are seized under this Act in the reasonable belief that an act to defraud the Government of any duty payable thereon or to evade any prohibition or restriction for the time being in force by or under this Act has been committed in respect of such goods, or that there is intent to commit such act, the burden of proving that no such act has been committed or there was no such intent shall be on the person from whose possession the goods were seized.
Court Decision
Conviction and sentence :-- Accused tried to
smuggle heavy amount of .Pak. Currency from Pakistan to Dubai through PIA--No
direct evidence--No incriminating articles were recovered from
accused--Currency was recovered from ceiling of the toilet-D of
aircraft--Accused had ticket and travelling documents for Dubai but he had not
yet boarded aircraft nor any boarding ticket was issued in his name when
accused was arrested--Accused was taken into custody by authorities when he was
getting out of briefing lounge of Airport--In case of presumed, accused wanted
to smuggle currency which was not an offence as defined under Section 156(1)(8)
r/w S. 2(s) of the Customs Act 1969--Accused is entitled to get benefit of
same--Appeal allowed--Conviction and sentence is set aside. PLJ 2004 Cr.C. (
Imposition of fine--Dismissal of appeal by High Court--Legality--Perusal of record coupled with findings of Customs Central Excise and Sales Tax Appellate Tribunal and the High Court clearly showed that petitioner had mis-declared description of goods and claimed evasion of tax under S.R.O. No. 602 which fact was evident from reply to show-cause notice wherein he had not claimed any concession under S.R.O. No. 643, thus, stance taken by petitioner at appellate stage by moving application for bringing amendment in memorandum of appeal to the extent that in place of SRO No. 602, SRO No. 643 be substituted was rightly declined--Only 10 percent of total consignment having been examined by customs staff, petitioner was rightly afforded benefit of 90 per cent of goods by Tribunals as well as by the High Court--Even otherwise, appeal before High Court was not competent in as much as, Tribunal had not referred any question of law arising out of the order to High Court for determination--Leave to appeal against judgment of High Court was thus, refused. 2004 SCMR 545 =PLJ 2004 SC 70
Confiscation of smuggled vehicles--Release of
such vehicles by tribunal was not in accord with intent of law--Order of
Tribunal relating to release of vehicles was set aside and that of confiscation
of same was resorted. PLJ 2003
Goods unlawfully removed from warehouses--Effect--Consignment
in question, having been stored in a bonded warehouse, custom duties would be
payable at the rate prevailing on the date of actual removal of goods from the
warehouse for consumption--Goods bonded in warehouse had been removed therefrom
without payment of custom duties and replaced with goods which had no nexus
with description given in relevant Bills of Entry--Goods in question, having
been removed from public warehouse respondent’s were liable to pay penalty both
under Sections 111 & 156 (1) (57)--Custom Authorities would determine penal
liability (amount) strictly in terms of S. 156 (57) which envisages penalty
equal to five time the duty chargeable on goods so deficient--Relevant data of
custom duty would be the date of detection of removal of goods from the bonded
warehouse as the date of ex-bonding. PLJ 2004
There was no evidence to suggest that he was making an attempt to smuggle currency out of Pakistan could not be charged for an act of smuggling punishable under Customs Act 1969. PLJ 2003 SC 462
Prosecution story that petitioner and his companions were confronted by officials of Coastal Guard when they were in process of taking Pak and foreign currency to sea shore to smuggle it out of Pakistan but as a result of exchange of firing they could not succeed and petitioner alongwith co-accused was apprehended at the spot with currency--Held : Act of taking of Pakistan Currency by petitioner to sea shore is not smuggling but recovery of foreign currency from secret cavities of vehicle and failure of petitioner to explain its lawful possession would give rise to a presumption of guilt under Section 187 of Customs Act, 1969--However, this special provision for raising presumption of guilt can only be pressed into service after basis onus of proving illegal possession of goods is discharged by prosecution and no such presumption should be raised without taking into consideration explanation of accused and if explanation given by accused reasonably casts a doubt in correctness of allegations, benefit of such doubt must be given to accused. PLJ 2003 SC 462
Confiscation of foreign currency recovered from possession of petitioner--High Court declared act of confiscation as illegal, void and without jurisdiction--Legality--Custom Authorities and any order of Custom Judge would not, ipso facto, overrule, decision of Custom Officers in adjudication proceedings, nor the acquittal of accused would nullify effect of adjudication proceedings, unless said proceedings on their own strength were contrary to law and against principles of natural Justice--Custom Authorities having confiscated currency strictly in accordance with law, such findings could not be disturbed by impugned judgment--Petition was converted into appeal and the same was allowed--Judgment of High Court was set aside and seized currency was confiscated to the state. PLJ 2002 SC 951
Petitioner has claimed the possession of Pak Currency but denied the possession of foreign currency which was recovered from the secret cavities of the vehicle in which petitioner and his companions were travelling--Thus the part of the transaction relating to the recovery of foreign currency from the secret cavities of vehicle would constitute an offence under Section 156(1) (8) of the Customs Act 1969 .whereas the part relating to the recovery of Pak Currency from the possession of petitioner while travelling in the territory of Pakistan would not be an offence under the Customs Act 1969, therefore, the seizure of Pak Currency and registration of case under Customs Act 1969 to that extent was illegal and consequently, the trial of the petitioner before the Special Judge Customs and also the adjudication proceedings before the departmental authorities would be without jurisdiction and illegal. PLJ 2003 SC 462
Recovery f narcotic substances from the possession of appellants--Conviction and sentence awarded to appellants as confirmed by High Court assailed--Leave to appeal was granted to examine whether offence under S. 156(1)(S) f Customs Act, 1969 and offences under S. 9(a)(b)(c) of Control f Narcotics Substances Act, 1997 were same offences and if an accused was convicted/sentenced under any f the provisions out f both f those laws, the trial/conviction/sentence of accused under other law would be bar in view f provisions f Art. 13(a) of the Constitution and S. 403 CrP.C. PLJ 2002 SC 332
Leave to appeal was granted by Supreme Court to consider; whether offences for which accused persons were being tried under Ss. 6, 7, 8, 9(c), 14 & 15 of Control of Narcotic Substances Act, 1997, were same for which they had earlier been tried under S. 156(1)(8) of Customs Act, 1969, as such, was violative of Art. 13 of Constitution. PLJ 2001 SC 1340
Accused persons were charged for smuggling of narcotic substances and were prosecuted under Customs Act, 1969 and Control of Narcotic Substances Act, 1997--Under proviso to S. 72 of Control cf Narcotic Substances Act, 1997, offences relating to narcotic drugs psychotropic substances were to be tried under Control of Narcotic Substances Act, 1997, notwithstanding anything contained in Customs Act, 1969 or any other law--Special Courts created under Control of Narcotic substances Act, 1997, had exclusive jurisdiction to try such offences to exclusion of any other Court under; any law inclusive of Customs Act, 1969--Prosecution of accused persons under Customs Act, 1969, was without jurisdiction--Proceedings taken under provisions of Customs Act, 1969, conviction recorded and sentence awarded were illegal as same had been taken, recorded and passed by a Court which was not vested with jurisdiction to proceed with matter–Such proceedings from very inception were coram non judice--Quashing of prosecution under provisions of Control of Narcotic Substances Act, 1997, in relation to conviction recorded and sentence passed by Special Court was not vested with jurisdiction to proceed in matter--Where conviction recorded and sentence awarded to accused persons by, Court under provisions of Customs Act, 1969, were without lawful authority and of no legal effect, such proceedings were quashed by Supreme Court--Trial of accused persons was valid under provisions of Control of Narcotic Substances Act, 1997 was directed to proceed with Trial--Supreme Court, however, observed that confession, if any, made by accused during trial under Customs Act, 1969 was not of any legal effect and trial was to be conducted independently in accordance with law. PLJ 2001 SC 1340
Import and applicability of S. 179-A of Customs Act--Section
179-A of the Act gives the verdict of Special Judge or Special Appellate Court
supremacy over orders passed by the authorities in adjudication proceedings--It
is the date of commission of offence and commencement of prosecution, which has
relevancy qua applicability of Section 179-A of the Act--Occurrence took place
on 3.12.1978, when Section 179-A of the Act was in force and was repealed later
on 28.6.1979--In view of the judgment of acquittal of petitioners passed by
Special Appellate Court in criminal appeal (PTCL-1988-CL-131), order passed by
respondents in adjudication proceedings confiscating their goods etc., could
not sustain and were declared as without lawful authority--Petition accepted. PLJ 2001
Quashing of proceedings--Accused by his act,
no doubt, had violated two laws viz. Customs Act, 1969 and Control of Narcotics
Substances Ordinance, 1996, but his offence was same for which he could not be
tried twice--Second trial was forbidden by Art. 13 of Constitution, S. 26 of
General Clauses Act and S. 403 of Code of Criminal Procedure--Main test in such
cases was as to whether same evidence would sustain convictions under both
laws--Same evidence would have to be led in case against accused in both forums
and ingredients of both alleged offences were also same--After his trial under
Customs Act, 1969, accused could not be tried under Anti-Narcotics Laws by
special Judge, Anti-Narcotics--Second trial of accused before Special Judge
(Anti-Narcotics) was contrary not only to Constitutional protection, but was
also forbidden under other laws as well, as mentioned above and was, thus, a
nullity in eyes of law and same was quashed accordingly. 2000 P Cr. L J 204 = PLJ 2000 Cr.C. (
Confiscation of foreign gold from respondent’s possession--Respondents
were ultimately acquitted by special judge customs--Appellate Tribunal Customs
drew conclusion that gold rennies were not of foreign
origin--Validity--Criminal proceedings before Court and confiscation
proceedings before customs authorities were concurrent, independent and
mutually conclusive--Question as to whether any seized goods were to be
returned to persons from whose possession they were seized has to be decided by
customs authorities and not by customs judge--Gold rennies admittedly have
inscription/ embossing showing them to be of foreign origin--Respondents,
failed to show by producing any documentary or other evidence to discharge
initial burden that gold in question, had been achieved by process or other
mans having been employed in Pakistan--In absence of any evidence to the
contrary, collector of customs was justified to draw inference that gold
rennies were of foreign origin and were smuggled goods--A.S.I on partrol duty
was justified in making search and arrest of respondent being Police Officer on
patrol then reported the matter to officer incharge of Police Station concerned
who conducted formal proceedings of seizure of goods in accordance with
Sections 158, 161, 168 and 170 of Customs Act 1969--Order passed by Appellate
Tribunal was set aside and that of Collector of Customs ordering seizure of
goods was restored. PLJ 2000
Special Judge believing recovery witnessed by three customs officials and convicting/sentencing accused--High Court on appeal particularly influenced by Chemical Examiners Report and disbelieving recovery evidence acquitting accused--Supreme Court on State appeal holding that case U/S. 156(1)(8) was properly established, setting aside acquittal and restoring conviction/sentence recorded by Special Judge. PLJ 2000 SC 303
Confiscation of imported vehicle--Importer
claimed exemption from customs duty etc. under Notification No. SRO 783(1)/92,
dated 19.8.1992 and got released imported vehicle against facility of
exemption--State Bank in view of Explanation of above said Notification issued
show-cause notice to importer to the effect that importer was not entitled to
benefit of said Notification and his vehicle was confiscated--State Bank’s
letter which was issued subsequent to filing of Bill of Entry, was not in
consonance of Notification and importer had fulfilled legal conditions--Letter
of State Bank which was not more than an executive instruction, could not be
operative retrospective--Even otherwise facility of exemption of customs duty
etc. having already been extended to 4 other importers under said Notification,
importer was also entitled to said facility. PLJ
1999
Whether accused can be convicted and sentenced
simultaneously under subsections (8) and (89) of Section 156 of Customs
Act--Question of--If a person has been found without lawful excuse
in possession of smuggled goods etc. he would be dealt with under subsection
(89) of section 156 of Customs Act and if evidence produced by prosecution
establishes that accused was smuggling goods outside or-into Pakistan, than he
would be liable to be dealt with under sub-section (8) of Section 156 of
Customs Act, 1969 and in such circumstances, he would not be punished under
sub-section (89) of section 156 of Customs Act--Appeals decided. 1998 P Cr. L J 411 = PLJ 1998
Bail :-- Recovery of
Heroin--Accused/petitioners apprehended by Inspector Rangers in border belt area--Since
about 11 months petitioners were behind the bars without any progress in
trial--Search was made in violation of mandatory provisions of law--Bail was
allowed. PLJ 1997 Cr-C- (
NLR 1989 Cr. 201, NLR 1989 UC 747, PLD 1988 Lah. 146, 1993 P.Cr.L.J. 500 ref
Recovery of--Conviction for 5 years--Challange to--S.
412 of Cr.P.C. reveals that where an accused person has pleaded guilty and has
been convicted by a court on such plea, there shall be no appeal except as to
extent or legality of sentence--Learned counsel for appellant has very rightly
placed his submission for reduction of sentence--Imprisonment for offence
punishable U/S. 156 (1)(8) of Customs Act is 14 years whereas appellants were
awarded sentence for only 5 years, RI and fine of Rs. 20,00,000/- --Sentence of
fine of Rs. 20,00,000/- is very harsh--Accordingly while maintaining sentence
of 5 years’ R.I. High Court modify sentence of fine to Rs. 5,00,000/- only or
in default each of appellant shall undergo further R.I. for six months--Appeal
partly accepted. 1997 P Cr. L J 51 = PLJ
1996 Cr.C. (
Non-production
of lessee and two marginal witness of deed (upon which respondents relied)
though alive and could be made available, casts serious doubt on case of
prosecution--Respondent has straight away adopted the stand that he was not
present at the time of recovery, so burden had shifted to prosecution to rebut
such plea through evidence of unimpeachable character which is totally
lacking--Learned DAG has failed to attack impugned judgment with sound legal
reasons- Appeal dismissed. PLD 1996 Pesh. 69
= PLJ 1996 Cr. C. (
Conviction for R.I. for two years--Challenge to--Learned
trial Judge keeping in view plea of guilty of accused and showing leniency in
convicting appellant for the term of 2 years R.I.--Punishment for this offence
is 14 years and learned Special Judge has already shown leniency in awarding
sentence--At the time of admission of appeal accused was not served with notice
calling upon him as to why his sentence may not be enhanced--But at the hearing
of appeal, prior notice was not issued to accused, therefore, reluctantly court
is not going to enhance sentence unilaterally. PLJ 1996 Cr.C. (
Bail--Grant of—Previous bail
application of the accused was dismissed as withdrawn by High Court with the
permission to file fresh application after final challan was submitted which
was likely to be submitted within two to three weeks--Such order did not give
the impression and the sense as drawn by the counsel of the accused in the
fresh bail application and the same could not be treated a fresh ground to move
the present application--Entertaining the present application meant to modify
the previous order without any convincing ground and such act of the Court
could be the worst precedent--Move of the accused’s counsel in filing the
present bail application which was merely a reproduction of the previous
application in verbatim, in the circumstances, had done nothing except to shock
the feelings of the Court--Moving an application with any such background could
never be appreciated in any manner on any ground and under any impression,
expectation or circumstances., whatsoever they might be, particularly at the
cost of the Court’s integrity, respect and honour--Bail application was
dismissed in circumstances. PLJ 1996 Cr.C. (
Bail on statutory ground--Prayer
for--Integrity of States depends upon integrity of its institutions--Applicant
was admittedly working as Deputy Superintendent (Vigilence) Civil Aviation
Authority when he was allegedly caught red handed--Being member of Authority,
applicant was morally duty bound to establish confidence of that
institution--In case charges are established against him, he has shattered
confidence of this sensitive institution in eyes of public--Held: Applicant
does not fall out of clutches of term “dangerous criminal” with reference to
his designation especially in light that term “dangerous” is a relative term. PLJ 1996 Cr. C. (
Intention
of legislature by using word “or” in Fourth Proviso clearly reflects that three
adjectives “hardened, desperate or dangerous” should be construed independently
and accused be denied bail if he falls within clutches of one or more
adjectives--Intention of legislature cannot be made slave of dictionary
meanings as concept of every commonly used word goes on expanding with fast
running time--Crime of smuggling heroin was certainly not known to be so
dangerous to people of Pakistan prior to Zia’ Martial Law Regime--Held:
Expressions “hardened, desperate, dangerous and criminals” used in fourth
proviso must be construed with their wider concepts particularly in respect of
those crimes which are squeezing beauty of humanity in every corner of world. PLJ 1996 Cr. C. (
On account of difference between nature of offence and their effects, it is
necessary that construction of three adjectives used in fourth proviso, be done
by keeping in view said difference from case to case because import and
constructions of three adjectives in issue in murder cases, cannot be made
applicable in cases of smuggling of heroin--Held: Accused/applicants alleged to
be involved in offences of gun-running, drugs smuggling/trafficking, running
Kharkar Camps, kidnapping for ransom or for any other illegal purpose and all
such other or similar vices, may be released on bail on any ground available to
them under section 497 Cr. P. C. except under third proviso to section
497(1)--Bail refused. PLJ 1996 Cr. C. (
Sentence awarded by Trial Court. was reduced by High Court--Challenge to--Contention that merely because respondent had pleaded guilty, dues not entitle hint to any uncalled for leniency particularly when offence committed was of smuggling of huge quantity of 8,500 k.g. of contraband narcotics--Held : Contentions need consideration--Leave granted. PLJ 1996 SC 130
Conviction - Challenge to--According to
complainant, appellant had come to Customs counter where he was performing his
duties whereas F.I.R. and evidence of I.O. show that appellant was arrested and
searched in departure lounge--Further evidence on this point shows that
appellant was taken to office of Customs situate at Airport and he was searched
and Mashintanta was prepared at office--This by itself is contrary to
requirement of law--Burden is not on accused to prove his innocence--All that
an accused is required to do is only to make a dent in prosecution case and
once he succeeds in doing so, he would be entitled to benefit of doubt--Held:
Prosecution has failed to prove its case--Benefit of doubt extended. PLJ 1995 Cr.0 (
Heroin in large quantity--Recovery of--Joint Trial under Section 156 of Customs Act, 1969 and Prohibition (Enforcement of Hadd) Order, 1979, Article 4 by Special Judge Customs-Challenge to--Contention that Special Judge Customs could not try appellant under Article 4 of Prohibition Order which was triable by Sessions Judge--Held: Joint trial of two separate offences was illegal and without lawful authority and appellant was prejudiced--Appeal accepted to extent of Article 4 of Prohibition Order and Sessions Judge directed to hold trial under Article 4 of Prohibition Order. PLJ 1995 FSC 6
Observations of learned Judge are purely conjectural and imaginary--Learned Judge was dealing with case arising from F.I.R. No. 24 of 1994, in which, there was no allegation of over invoicing or non-payment of lading and demurrage charges against appellant--These allegations were subject matter of F.I.R. Nos. 7 and 23 of 1994, in which appellant was already admitted to bail by another Judge of High Court, and same could not be taken into consideration for denying bail in case before learned Judge--Appellant could not be convicted by Special Judge under Section 5(2) as he was not a public servant--Held: Application of Section 5(2) of Act 1947, by prosecution, did not come in way of grant of bail to appellant. PLJ 1995 SC 357
Offence under Section 32 of Act entails maximum punishment of 3 years or fine or both in addition to penalty which may extend to Rs. 25000/- or three times value of goods--It is quite clear that clause 14 of Section 156 of Act does not fall within prohibitory clause of Section 497 Cr. P.C.--Appellant was arrested on 16.6.1994 and since then, he is in custody--Held: Reasonings given by learned Judge in declining bail to appellant in case under Section 156(1)(14) of Act, besides being artificial, are contrary to settled principles laid down by Supreme Court for grant of bail in such cases--Held further. Observations made by learned Judge could easily be avoided as they were neither necessary nor germane to decision of bail application of appellant--Bail allowed. PLJ 1995 SC 357
1969 SCMR 233 and judgement of Supreme Court in Criminal Petition No. 56-K dated 31.8.1994 rel.
Smuggling of auto parts--Allegation against appellant is that he smuggled unspecified number of auto parts in trunks of 200 Daewoo Racer Taxis imported by him in 1992--Appellant was entitled to show before learned Judge that goods seized from his office were not smuggled goods--Examination of invoices produced by appellant before High Court, shows that auto parts seized from his show room, were lawfully imported--Learned Judge in chambers failed to take into consideration that appellant was accused of smuggling goods which he claimed were freely available in open market--Held: It cannot be said at this stage that reasonable grounds exist for believing that appellant is guilty of offence which falls under Section 156(1)(8) of Customs Act--Bail allowed. PLJ 1995 SC 357
PLD 1968 SC 349 and PLD 1972 SC 277 rel.
Conviction under section 156(1)(8) of Customs
Act--Whether trial under Articles 3&4 of Prohibition Order,
1979, for same offence and on same facts, is barred--Question of--Offences
under Customs Act and under Articles 3&4 of Order, 1979, are separate and
distinct offences--Held: Provisions of Article 13 of Constitution and Section
403 of Cr.P.C. are not applicable--Petition dismissed. PLJ
1994
Prayer to both sentences to run concurrently--If
a person is already undergoing sentence and is subsequently sentenced to
another term, such imprisonment is to commence after expiration of sentence in
previous case--Only subsequent court can order sentence to run concurrently
with previous sentence--No such order was made by courts trying offence under
Article 4 of Prohibition Order- No appeal before Federal Shariat Court
was filed by petitioners in writ petitions--Held: Neither under inherent powers
under Section 561-A of Cr.P.C. nor under constitutional jurisdiction under
Article 199 of Constitution, High Court can order such sentences to run
concurrently--Writ petitions dismissed. PLJ 1992
Cr.C (
AIR 1978
Condonation of delay in filing appeal--Appellate
court has power to excuse and condone delay if it is satisfied that appellants
had sufficient cause or good reason for not filing appeal within time--Held: As
appellants were foreigners and had none to look after their defence and advise
them properly, delay in filing appeals by them is excused and condoned. PLJ 1992 Cr.C (
There is overwhelming evidence on record about recovery of silver from launch
in presence of appellants who were members of Crew--Evidence of PW2 has
practically gone un-challenged meaning thereby that appellants have accepted
evidence given against them--It was a fit case to exercise powers under
Sections 163 and 164 of Act--Section 178 does not provide any separate
punishment but is only an enabling provision--Held: Persons found together and
having knowledge of possession of goods liable to confiscation, are guilty of
offence under Act as if goods were found from such persons--Appeals dismissed. 1991 M L D 1668 = PLJ 1991 Cr.C. (
PLD 1968
Leave to appeal was granted to consider whether in the circumstances of the case High Court was justified in law to interfere with the order of Trial Court, to cancel the case and direct the return of the smuggled item (gold) to the respondent and whether the power to deal with the gold vested in the Adjudication Officer and not in the Trial Court or for that matter in the Revisional Court. 1997 S C M R 299
Neither any recovery was effected from petitioner nor there is any evidence that he procured heroin nor there is any evidence to indicate that he passed on heroin to his co - accused - petitioner is in custody since 27/5/1997 and is not required for purpose of further investigation - In these circumstances this application is allowed and petitioner is allowed bail provided he furnishes bail bonds in sum of Rs. One Lac with two sureties each in like amount to satisfaction of Trial Court - 1999 P.Cr.L.J 348
Conviction
and sentence recorded against petitioner, assailed--Legality--Evidence on
petitioner with Commission of crime in question--Vital evidence on factual
aspect of case was absolutely inconclusive--Accused cannot be deemed guilty for
crime on basis of probabilities and high presumptions--No one is to be construed
into any crime without legal proof--Conviction of petitioner was thus, not
warranted on basis of evidence on record. PLJ 2005
Proof :-- Conviction and sentence recorded
against petitioner--Prosecution produced no evidence that contrabands
attributed to petitioners was of foreign origin and that they had smuggled the
same conviction and sentence recorded under S. 156 (1)(89)/178, was thus, not
warranted being based on inadmissible evidence--Conviction and sentence in
question recorded against petitioner were set aside and he was acquitted of
charge. PLJ 2005
1998 Cr. L.J
1693; AIR 1941
Mr. Hamid Farooq Durrani, D.A.G. for Respondents. Date of hearing: 21.9.2004.
Suspension of sentence – First prosecution of accused under the customs Act had not reached any conclusion—second trial of accused under the NAB Ordinance, therefore, was neither violative of Art. 13(a) of the Constitution nor in contravention of S. 403(1), Cr .P. C—Trial Court apparently had not committed any grave error in appraisal of evidence while finding the accused guilty and convicting him—Application for suspension of sentence was dismissed in circumstances. PLD 2003 Kar. 97
157. Extent of confiscation.- (1) Confiscation of any goods under this Act includes any package in which they are found, and all other contents thereof.
(2) Every conveyance of whatever kind used in the removal of any goods liable to confiscation under this Act shall also be liable to confiscation.
Provided that, where a conveyance liable to confiscation has been seized by an officer of customs, the appropriate officer may, in such circumstances as may be prescribed by rules, order its release, pending the adjudication of the case involving its confiscation if the owner of the conveyance furnishes him with a sufficient guarantee from a scheduled bank for the due production of the conveyance at any time and place it is required by the appropriate officer to be produced.
(3) Confiscation of any vessel under this Act includes her tackle, apparel and furniture.
Court Decision
Accused
by his act, no doubt, had violated two laws viz. Customs Act, 1969 and Control
of Narcotics Substances Ordinance, 1996, but his offence was same for which he
could not be tried twice--Second trial was forbidden by Art. 13 of
Constitution, S. 26 of General Clauses Act and S. 403 of Code of Criminal
Procedure--Main test in such cases was as to whether same evidence would
sustain convictions under both laws--Same evidence would have to be led in case
against accused in both forums and ingredients of both alleged offences were
also same--After his trial under Customs Act, 1969, accused could not be tried
under Anti-Narcotics Laws by special Judge, Anti-Narcotics--Second trial of accused
before Special Judge (Anti-Narcotics) was contrary not only to Constitutional
protection, but was also forbidden under other laws as well, as mentioned above
and was, thus, a nullity in eyes of law and same was quashed accordingly. 2000 P Cr. L J 204 = PLJ 2000 Cr.C. (
CHAPTER XVIII
PREVENTION OF SMUGGLING – POWERS OF SEARCH, SEIZURE AND ARREST – ADJUDICATION OF OFFENCES
158. Power to search on reasonable ground.- (1) The appropriate officer, if he has reason to believe that any person is carrying about himself goods liable to confiscation or any documents relating thereto, may search such person, if he has landed from or is on board or is about to board a vessel within the Pakistan customs-waters, or if he has alighted from, or is about to get into or is in any other conveyance arriving in or proceeding from Pakistan, or if he is entering or about to leave Pakistan, or if he is within the limit of any customs-area.
(2) Without prejudice to the provisions of sub-section (1) the appropriate officer may search a person, if he has reason to believe that such person is carrying about himself smuggled Platinum, any radio active mineral, gold, silver or precious stones, manufactures of Platinum, any radioactive mineral, gold, silver or precious stones, or currency, or any other goods or class of goods notified by the Federal Government in the official Gazette, or any documents relating to any one or more of the aforementioned goods.
159. Persons to be searched may desire to be taken before gazetted officer of customs or Magistrate.- (1) When any officer of customs is about to search any person under the provisions of section 158, the officer of customs shall inform such person about his right to be taken to a gazetted officer of customs or Magistrate, and if such person so desires take him without unnecessary delay to the nearest gazetted officer of customs or Magistrate before searching him, and may detain him until he can be so taken.
(2) The gazetted officer of customs or the Magistrate before whom such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person and record reasons for doing so, or else direct search to be made.
(3) Before making a search under section 158, the officer of customs shall call upon two or more persons to attend and witness the search and may issue an order in writing to them or any of them so to do, and the search shall be made in the presence of such persons and a list of all things seized in the course of such search shall be prepared by such officer or other person and signed by such witnesses.
(4) A female shall not be searched except by a female.
160. Power to screen or X-Ray bodies of suspected persons for detecting secreted goods.- (1) Where the appropriate officer has reason to believe that any person liable to search under section 158 has any goods liable to confiscation secreted inside his body, he may detain such person and produce him without unnecessary delay before an officer of customs not below the rank of an Assistant Collector] of Customs.
(2) The aforesaid officer, if he has reasonable grounds for believing that such person has any such goods secreted inside his body and that it is necessary to have the body of such person screened or X-Rayed, may make an order to that effect, or else discharge such person forthwith, except where he is held on any other grounds.
(3) Where the aforesaid officer orders such person to be screened or X-Rayed, the appropriate officer shall, as soon as practicable, take him to a radiologist possessing such qualifications as may be recognized by the Federal Government for that purpose and such person shall allow the radiologist to screen or X-Ray his body.
(4) The radiologist shall screen or X-Ray the body of such person and forward his report thereon, together with any X-Ray picture taken by him to the aforesaid officer without unnecessary delay.
(5) Where on the basis of a report from a radiologist or otherwise, the aforesaid officer is satisfied that any person has any goods liable to confiscation secreted inside his body, he may direct that suitable action for bringing such goods out of his body be taken on the advice and under the supervision of a registered medical practitioner and such person shall be bound to comply with such direction:
Provided that in the case of a female no such action shall be taken except on the advice and under the supervision of a female registered medical practitioner.
(6) Where any person is brought before an officer of customs not below the rank of an Assistant Collector of Customs as aforesaid, he may direct that pending completion of all action under this section such person be detained.
(7) No person shall be subjected to screening or X-Ray if he confesses that goods liable to confiscation are secreted inside his body and of his own consent agrees to suitable steps being taken to bring out such goods.
161. Power to arrest.- (1) Any officer of customs authorized in this behalf who has reason to believe that any person has committed an offence under this Act may arrest such person.
(2) Any person duly empowered for the prevention of smuggling who has reason to believe that any person who has committed an offence of smuggling under this Act may arrest such person.
(3) Every person arrested under this Act shall be taken forthwith before the nearest officer of customs authorized by the Collector of Customs to deal with such cases, or, if there is no such officer of customs within a reasonable distance, to the officer-in-charge of the nearest police-station.
(4) When any person arrested under this Act is taken before an officer of customs or the officer-in-charge of a police-station, as required by sub-section (3), or when such officer of customs or officer-in-charge of a police-station himself arrests any person under this Act, such officer or officer-in-charge shall, if the offence is bailable, admit him to bail to appear before the Special Judge having jurisdiction or, if the offence is non-bailable, have him taken in custody to the Special Judge or if there is no Special Judge within a reasonable distance, to the [nearest Judicial Magistrate,] within twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Special Judge or , as the case may be, of such Magistrate
(5) When any person is taken under sub-section (4) before the Special Judge, he may, on the request of such person, after perusing the record, if any, and after giving the prosecution an opportunity of being heard, admit him to bail on his executing a bond, with or without sureties, or refuse to admit him to bail and direct his detention at such place as he deems fit:
Provided that nothing herein contained shall preclude the Special Judge from cancelling the bail of any such person at a subsequent stage if, for any reason, he considers such cancellation necessary, but before passing such order he shall afford such person an opportunity of being heard, unless for reasons to be recorded he considers that the affording of such opportunity shall defeat the purposes of this Act.
(6) When such person is taken under sub-section (4) before a Magistrate, such Magistrate may, after authorizing his detention in such custody, at such place and for such period as he considers necessary or proper for facilitating his earliest production before the Special Judge, direct his production before the Special Judge on a date and time to be fixed by such Magistrate, or direct such person to be forthwith taken to, and produced before, the Special Judge and he shall be so taken.
(7) Nothing in sub-section (5) or sub-section (6) shall preclude the Special Judge or the Magistrate from remanding any such person to the custody of the officer of customs, or the officer-in-charge of a police-station holding inquiry against that person if such officer makes a request in writing to that effect and the Special Judge or the Magistrate, after perusing the record, if any, and hearing such person, is of the opinion that for the completion of inquiry or investigation it is necessary to make such an order; provided that in no case the period of such custody shall exceed fourteen days.
(8) When any person arrested under this Act is brought before an officer of customs or the officer-in-charge of a police-station as required by sub-section (3), or when such officer of customs or officer-in-charge of a police-station himself arrests any person under this Act, such officer shall, if he is an officer of customs, record the fact of arrest and other relevant particulars in the register mentioned in sub-section (12) or, if he is an officer-in-charge of a police-station, record such fact in the register ordinarily maintained by him, and shall immediately proceed to inquire into the charge against such person and if he completes the inquiry within twenty-four hours of his arrest, excluding the time necessary for journey as aforesaid, he may, after producing such person before the Special Judge or the nearest Judicial Magistrate make a request for his further detention in his custody.
(9) While holding an inquiry under sub-section (8), the officer of customs shall exercise the same powers as are exercisable by an officer-in-charge of a police-station under the Code of Criminal Procedure, 1898 (Act V of 1898), but such officer and the officer-in-charge of a police-station shall exercise such powers subject to the foregoing provisions of this section while holding an inquiry under this Act.
(10) If the officer of customs or the officer-in-charge of a police-station, as the case may be, after holding an inquiry as aforesaid, is of the opinion that there is no sufficient evidence or reasonable ground for suspicion against such person, he shall release him on his executing a bond, with or without sureties as the officer may direct, to appear, as and when required, before the Special Judge, may make a report to the Special Judge for the discharge of such person and shall make a full report of the case to his immediate superior.
(11) The Special Judge to whom a report has been made under sub-section (10) may, after the perusal of record of the inquiry and hearing the prosecution, agree with such report and discharge the accused or, if he is of the opinion that there is sufficient ground for proceeding against such person, proceed with his trial and direct the prosecution to produce evidence.
(12) The officer of customs empowered to hold inquiry under this section shall maintain a register to be called “Register of Arrests and Detention” in the prescribed form in which he shall enter the name and other particulars of every person arrested under this Act, together with the time and date of arrest, the details of the information received, the details of things, goods or documents recovered from his custody, the name of the witnesses and the explanation, if any, given by him and the manner in which the inquiry has been conducted from day to day; and such register or authenticated copies of its aforesaid entries shall be produced before the Special Judge whenever such officer is so directed by him.
(13) After completing the inquiry, the officer of customs shall submit to the Special Judge a report in the form and manner, as early as possible, in which the officer-in-charge of a police-station submits a challan before a Court, or if such inquiry has been conducted by an officer-in-charge of a police-station, he shall submit a challan before the Special Judge.
(14) The officer of customs, or as the case may be, the officer-in-charge of a police-station shall immediately intimate the fact of the arrest of a person under sub-sections (1),(2) or (4) to the Special Judge who may direct such officer to produce that person at such time and place and on such date as the Special Judge considers expedient and such officer or officer-in-charge shall act accordingly.
(15) Any Magistrate of the first class may record any statement or confession during inquiry under this Act, in accordance with the provisions of section 164 of the Code of Criminal Procedure,1898 (Act V of 1898).
(16) Without prejudice to the foregoing provisions of this section, the Federal Government may, by notification in the official Gazette authorize any other officer also to exercise the power and perform the functions of an officer of customs or officer-in-charge of a police-station under this section, subject to such conditions, if any, that it may deem fit to impose.
162. Power to issue search warrant.- (1) Any Judicial Magistrate may, on application by a gazetted officer of customs stating the grounds of his belief that goods liable to confiscation or documents or things which in his opinion will be useful as evidence in any proceeding under this Act are secreted in any place within the local limits of the jurisdiction of such Magistrate, issue a warrant to search for such goods, documents or things.
(2) Such warrant shall be executed in the same way, and shall have the same effect, as a search-warrant issued under the Code of Criminal Procedure, 1898 (Act V of 1898).
Court Decision
Power to issue search warrant :-- Raid by Sales Tax Staff--Seziure of financial records and property without receipt--Illegal custody of employees of petitioner--Registration of criminal case: and extending of threats--Validity--Such resort to free access and free inspection without essential safeguards will be subversive of guarantees under Arts. 9, 14 15, 18, 23 and 24 of Constitution of Pakistan, 1973--Provisions of Ss. 38, 40 and 40-A of Sales Tax Act, 1990 or of S. 18 of Central Excise Act of 1944 and Rr. 179 and 201 of Excise Rules, all relate to searches--S. 40 of Act of 1990 and S. 18 of Act of 1944 require all searches to be in accord with Code of Criminal Procedure, 1898--To prevent removal of relevant documents or things, powers of search with warrant have also been provided for in Section 40-A of Sales Tax Act--Exercis of this power is conditional upon statement of grounds of belief as to and showing of danger of removal or destruction of record--This section is part-material applicable provision of Code of Criminal Procedure--S. 40-A is nevertheless invocable only in extreme and extraordinary situations--Once warrant for search under Section 40 of Sales Tax Act or Section 18 of Central Excise Act are obtained as per Code of Criminal Procedure or once provisions of Section 40--A are invoked, officer gains entry and access to required places and premises--Provisions of Ss. 38 of Act, 1990 or Rules of Central Excise Rules then taken over the provide free access to authorized officer to enter places where stocks or records are kept or maintained--And such officer can inspect and take into custody required records, things, diskettes and documents etc. Respondents were specifically intended and designed to probe, investigate and discover presumed illegal tax--Avoidance for which record and accounts were seized--These acts could not therefore be termed as “routine inspections” but were akin to raid and investigation in criminal matter or for offence--S. 162 of Customs Act empowers Magistrate to issue search warrant on application by a gazette officer of Customs--Under S. 163, sub-section (1) Officer of Customs not below rank of Assistant Collector of customs or any other officer of like rank duly employed for prevention of smuggling, if he has reasons to believe that any goods liable to confiscation under Act are cancelled or kept in any place and there is danger that same may be removed before search can be effected u/S. 162, may after preparing statement in writing of grounds of his belief and of goods for which search is to be made, search or cause search to be made for such goods in that place--Officer who makes search or causes search to be made, is further required by sub-section (2) to leave signed copy of aforementioned statement in or about place searched or as soon as practicable thereafter to deliver furthermore signed copy of such statement to occupier of place at his last known address--Sub-section (3) of S. 163 directs that all searches made under this section shall be carried out mutatis mutandis in accordance with provisions of criminal procedure Code--S. 171 requires that when anything is seized, officer making such seizure shall as soon as may be, inform in writing person from whose possession things are seized of grounds of such seizures or arrest--Held : Purported visit or access by concerned officer were raids designed at search and seizure of records and assets which are without lawful authority and of no legal effect--Held further : Proceedings and actions taken in consequence of such raid, searches and seizures including issuance of any show cause notice, registration of FIR, complaint, prosecution or recovery proceedings are also illegal, unlawful and without lawful authority--Respondents directed to return records, accounts, papers or other property to petitioners seized during such raid and searches--petitions accepted. PLJ 2004 Lahore 1396 Rights of citizen in respect of private property would be interfered with only for genuine reasons related to prevention of smuggling and evasion of customs duty only--Safeguard provided by S. 162 of Customs Act, 1969 can be effective only if procedure prescribed by law in faithfully and honestly followed by application of mind in each individual case--Ordinarily a place is to be researched only after search warrant has been obtained from magistrate in terms of S. 162 Customs Act 1969, however in extraordinary cases S. 162 of the Act of 1969 can be dispensed with as in permissible under S. 163 of the Act of 1969, but grounds, must be stated by customs officer concerned for his belief and decision in not obtaining search warrant--Customs officer must state grounds which justify apprehension of danger of removal of goods. PLJ 2005 SC 137 Search conducted by Customs Authorities--Legality--Order impugned would reveal that search was conducted in view of strong apprehension of removal of suspected smuggled goods--Notices under Section 171 Customs Act 1969, were also served upon respondents--All legal formalities never completed by customs authorities before searching godown and registration of case against respondents which hardly warrant interference by High Court in its Constitutional jurisdiction--Controversial question cannot be decided by High Court under Art. 199 of the Constitution. PLJ 2005 SC 137
Search in urgent and emergent situation--Mode
of--Under ordinary circumstances provisions contained ,in S. 162 of Customs Act
1969 must be implemented but in urgent and emergent situation, search can be
conducted without having search warrant subject to conditions as enunieiated in
S 163, Customs Act, 1969. PLJ 2005 SC 137
PLD 1979
1977 Lahore 1318; PLD 198:3 SC 280; 1986 SCMR 598; 198.1 SCMR 291; 1968 SCMR 935; 1971 SCMR 110; 1997 SCMR 679; 1970 SCMR 853; 1969 SCMR 217; 1968 SCMR 880: 1968 SCMR 145; 2001 PTD 3929; 1989 CLC
1938; 1989
1972 SCMR 87; PLD
1981
163. Power to search and arrest without warrant.- (1) Whenever any officer of customs not below the rank of an Assistant Collector of Customs or any other officer of like rank duly employed for the prevention of smuggling has reasonable grounds for believing that any goods liable to confiscation or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act are concealed or kept in any place and that there is a danger that they may be removed before a search can be effected under section 162, he may, after preparing a statement in writing of the grounds of his belief and of the goods, documents or things for which search is to be made, search or cause search to be made for such goods, documents or things in that place.
(2) An officer or person who makes a search or causes a search to be made under sub section (1) shall leave a signed copy of the aforementioned statement in or about the place searched and shall, at the time the search is made or as soon as is practicable thereafter, deliver furthermore a signed copy of such statement to the occupier of the place at his last known address.
(3) All searches made under this section shall be carried out mutatis mutandis in accordance with the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898).
(4) Notwithstanding anything contained in the foregoing sub-sections and subject to previous authorization by an officer of customs not below the rank of an Assistant Collector of Customs, any officer of customs or any person duly empowered as such may, with respect to an offence related to exportation of such goods as the Federal Government may, by notification in the official Gazette, specify in this behalf-
(a) arrest without warrant any person concerned in such offence or against whom reasonable suspicion exists that he is about to be concerned in such offence;
(b) enter and search without warrant any premises to make an arrest under clause (a),or to seize any goods which are reasonably suspected to be intended for exportation contrary to any prohibition or restriction for the time being in force, and all documents or things which in his opinion will be useful for or relevant to any proceeding under this Act; and
(c) for the purpose of arresting, detaining or taking into custody or preventing the escape of any person concerned or likely to be concerned in such offence, or for the purpose of seizing or preventing the removal of any goods in respect of which any such offence has occurred or is likely to occur, use or cause to be used such force to the extent of causing death as may be necessary.
(5) The provisions of sub-section (4)
shall apply only to the areas within five miles of the land frontier of
(6) No suit, prosecution or other legal proceeding shall be instituted, except with the previous sanction in writing of the Federal Government, against any person in respect of anything done or purporting to be done in exercise of the powers conferred by sub-section (1) or sub-section(2) or, in the areas specified in sub-section (5), by sub-section (4).
Court Decision
Mode of search and arrest without warrant :-- Under ordinary circumstances provisions contained ,in S. 162 of Customs Act 1969 must be implemented but in urgent and emergent situation, search can be conducted without having search warrant subject to conditions as enunieiated in S 163, Customs Act, 1969. PLJ 2005 SC 137
Illegal custody of employees of petitioner--Registration
of criminal case: and extending of threats--Validity--Such resort to free
access and free inspection without essential safeguards will be subversive of
guarantees under Arts. 9, 14 15, 18, 23 and 24 of Constitution of Pakistan,
1973--Provisions of Ss. 38, 40 and 40-A of Sales Tax Act, 1990 or of S. 18 of
Central Excise Act of 1944 and Rr. 179 and 201 of Excise Rules, all relate to
searches--S. 40 of Act of 1990 and S. 18 of Act of 1944 require all searches to
be in accord with Code of Criminal Procedure, 1898--To prevent removal of
relevant documents or things, powers of search with warrant have also been
provided for in Section 40-A of Sales Tax Act--Exercis of this power is
conditional upon statement of grounds of belief as to and showing of danger of
removal or destruction of record--This section is part-material applicable
provision of Code of Criminal Procedure--S. 40-A is nevertheless invocable only
in extreme and extraordinary situations--Once warrant for search under Section
40 of Sales Tax Act or Section 18 of Central Excise Act are obtained as per
Code of Criminal Procedure or once provisions of Section 40--A are invoked,
officer gains entry and access to required places and premises--Provisions of
Ss. 38 of Act, 1990 or Rules of Central Excise Rules then taken over the
provide free access to authorized officer to enter places where stocks or
records are kept or maintained--And such officer can inspect and take into
custody required records, things, diskettes and documents etc. Respondents were
specifically intended and designed to probe, investigate and discover presumed
illegal tax--Avoidance for which record and accounts were seized--These acts
could not therefore be termed as “routine inspections” but were akin to raid
and investigation in criminal matter or for offence--S. 162 of Customs Act
empowers Magistrate to issue search warrant on application by gazetted officer
of Customs--Under S. 163, sub-section (1) Officer of Customs not below rank of
Assistant Collector of customs or any other officer of like rank duly employed
for prevention of smuggling, if he has reasons to believe that any goods liable
to confiscation under Act are cancelled or kept in any place and there is
danger that same may be removed before search can be effected u/S. 162, may
after preparing statement in writing of grounds of his belief and of goods for
which search is to be made, search or cause search to be made for such goods in
that place--Officer who makes search or causes search to be made, is further
required by sub-section (2) to leave signed copy of aforementioned statement in
or about place searched or as soon as practicable thereafter to deliver
furthermore signed copy of such statement to occupier of place at his last
known address--Sub-section (3) of S. 163 directs that all searches made under
this section shall be carried out mutatis mutandis in accordance with
provisions of criminal procedure Code--S. 171 requires that when anything is
seized, officer making such seizure shall as soon as may be, inform in writing
person from whose possession things are seized of grounds of such seizures or
arrest--Held : Purported visit or access by concerned officer were raids
designed at search and seizure of records and assets which are without lawful
authority and of no legal effect--Held further : Proceedings and actions taken
in consequence of such raid, searches and seizures including issuance of any
show cause notice, registration of FIR, complaint, prosecution or recovery
proceedings are also illegal, unlawful and without lawful
authority--Respondents directed to return records, accounts, papers or other property
to petitioners seized during such raid and searches--petitions accepted. PLJ 2004
Controversial question involved in matter--Such question cannot be resolved by invocation of Constitutional jurisdiction--Controversial question being involved in the matter, High Court could not have resolved such question in exercise of its Constitutional jurisdiction--Controversial question, in fact were never considered by the High Court and matter has been decided in casual and cursary manner--Alternate efficacious remedies being available under Ss. 179, 193, 194-A and 196 of Customs Act 1969, Constitutional jurisdiction should not have been exercised. PLJ 2005 SC 137
Essentials--Rights of citizen in respect of private property would be interfered with only for genuine reasons related to prevention of smuggling and evasion of customs duty only--Safeguard provided by S. 162 of Customs Act, 1969 can be effective only if procedure prescribed by law in faithfully and honestly followed by application of mind in each individual case--Ordinarily a place is to be researched only after search warrant has been obtained from magistrate in terms of S. 162 Customs Act 1969, however in extraordinary cases S. 162 of the Act of 1969 can be dispensed with as in permissible under S. 163 of the Act of 1969, but grounds, must be stated by customs officer concerned for his belief and decision in not obtaining search warrant--Customs officer must state grounds which justify apprehension of danger of removal of goods. PLJ 2005 SC 137
Search conducted by Customs Authorities--Legality--Order impugned would reveal that search was conducted in view of strong apprehension of removal of suspected smuggled goods--Notices under Section 171 Customs Act 1969, were also served upon respondents--All legal formalities never completed by customs authorities before searching godown and registration of case against respondents which hardly warrant interference by High Court in its Constitutional jurisdiction--Controversial question cannot be decided by High Court under Art. 199 of the Constitution. PLJ 2005 SC 137
164. Power to stop and search conveyances.- (1) Where the appropriate officer has reason to believe that within the territories of Pakistan(including territorial waters) any conveyance has been, is being or is about to be, used in the smuggling of any goods or in the carriage of any smuggled goods, he may at any time stop any such conveyance or, in the case of an aircraft, compel it to land, and -
(a) rummage and search any part of the conveyance;
(b) examine and search any goods thereon; and
(c) break open the lock of any door, fixture or package for making search.
(2) Where in the circumstances referred to in sub-section (1)-
(a) it becomes necessary to stop any vessel or compel any aircraft to land, it shall be lawful of any vessel or aircraft in the service of the Government while flying her proper flag or bearing flag marks and any authority authorized in this behalf by the Federal Government to summon such vessel to stop or the aircraft to land, by means of an international signal, code or other recognized means, and thereupon such vessel shall forthwith stop or such aircraft shall forthwith land, and if it fails to do so chase may be given thereto by any vessel or aircraft as aforesaid and if after a gun is fired as a signal, the vessel fails to stop or the aircraft fails to land, it may be fired upon;
(b) it becomes necessary to stop any conveyance other than a vessel or aircraft, the appropriate officer may use or cause to be used all lawful means for stopping it or preventing its escape including, if all other means fail, firing upon it.
165. Power to examine persons.- (1) The appropriate officer may, during the course of an inquiry in connection with the smuggling of any goods.-
(a) require any person to produce or deliver any document or thing to such officer;
(b) examine any person acquainted with the facts and circumstances of the case.
(2) The appropriate officer shall exercise the powers in sub-section (1) only in relation to a person who is readily available or present before him and shall be subject to the same provisions as an officer-in-charge of a police-station is subject to under the Code of Criminal Procedure, 1898 (V of 1898), when investigating a cognizable offence.
166. Power to summon persons to give evidence and produce documents or things. – (1) Any gazetted officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce document or any other thing in any inquiry which such officer is making
(2) A summon to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.
(3) All persons so summoned shall be bound to attend either in person or by an authorized agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statement and produce such documents and other things as may be required;
Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (Act V of 1908), shall be applicable to any requisition for attendance under this section.
(4) Every such inquiry as aforesaid shall be deemed to be judicial proceeding within the meaning of section 193 and section 228 of the Pakistan Penal Code, (Act XLV of 1860).
167. Person escaping may be afterwards arrested.- If any person liable to be arrested under this Act is not arrested at the time of committing the offence for which he is so liable, or after arrest makes his escape, he may at any time afterwards be arrested and dealt with in accordance with the provisions of section 161 as if he had been arrested at the time of committing such offence.
Court Decision
Order impugned would reveal that search was conducted in view of strong apprehension of removal of suspected smuggled goods--Notices under Section 171 Customs Act 1969, were also served upon respondents--All legal formalities never completed by customs authorities before searching godown and registration of case against respondents which hardly warrant interference by High Court in its Constitutional jurisdiction--Controversial question cannot be decided by High Court under Art. 199 of the Constitution. PLJ 2005 SC 137
168. Seizure of things liable to confiscation.- (1) The appropriate officer may seize any goods liable to confiscation under this Act, and where it is not practicable to seize any such goods, he may serve on the owner of the goods or any person holding them in his possession or charge an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer.
Where any goods are seized under sub-section (1) and no show cause notice in respect thereof is given under section 180 within two months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized:
Provided that the aforesaid period of two months may, for reasons to be recorded in writing, be extended by the Collector of Customs by a period not exceeding two months:
Provided further that the limitation prescribed under sub-section (2) shall not apply to goods specified under the first proviso to section 181.
(3) The appropriate officer may seize any documents or things which in his opinion will be useful as evidence in any proceeding under this Act.
(4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts therefrom in the presence of an officer of customs.
Court Decision
Confiscation of goods--Notice in
writing--Held: Goods which are being played or possessed in contravention of
the provisions of the Customs Act can only be seized after a notice in writing
to the person having its possession--Issuance of such notice is mandatory and
its non-compliance is uncurable illegality under the law. PLJ 2005
Seizure of goods under S. 168, Customs Act 1969--Failure
to give show-cause notice within stipuled period of two
months--Effect--Non-recording of reasons in order of extension of
time--Validity--Seizure of goods could be either of two forms Lc, either
customs Authorities could take goods away and keep them under their own custody
or where the same was not possible, could be kept with owner after obtaining
bond for their safe custody--Period for seizure, however, should not be
prolonged--Customs Authority must give show-cause notice for confiscation of
goods in question, within two months of seizure failing which, person from whom
goods were recovered would earn right to be restored possession of those
goods--Such period of two months could be extended for reasons to be recorded
in writing–Collector of customs could not abdicate his authority to
sub-ordinate functionary and pass mechanical order, he has to justify extension
by reasons-Orders of extension of specified data by Collector of Customs could
not be deemed to be orders within meaning of proviso to sub-section (2) of S.
168, Customs Act 1969--No show-cause notice having been issued within period of
two months of seizure as contemplated in law orders in question, were not
sustainable in law–Owner of goods thus, had earned right for return of goods,
in question--Non-compliance of S. 168(2) Customs Act 1969, would create right
of return of goods, however, would not absolve delinquent from liability of
fine if the same was warranted in law--Subject matter of petition was directed
to be returned to petitioner. PLJ 2000
Confiscation of foreign gold from respondent’s possession--Respondents
were ultimately acquitted by special judge customs--Appellate Tribunal Customs
drew conclusion that gold rennies were not of foreign
origin--Validity--Criminal proceedings before Court and confiscation
proceedings before customs authorities were concurrent, independent and
mutually conclusive--Question as to whether any seized goods were to be
returned to persons from whose possession they were seized has to be decided by
customs authorities and not by customs judge--Gold rennies admittedly have
inscription/ embossing showing them to be of foreign origin--Respondents, failed
to show by producing any documentary or other evidence to discharge initial
burden that gold in question, had been achieved by process or other mans having
been employed in Pakistan--In absence of any evidence to the contrary,
collector of customs was justified to draw inference that gold rennies were of
foreign origin and were smuggled goods--A.S.I on partrol duty was justified in
making search and arrest of respondent being Police Officer on patrol then
reported the matter to officer incharge of Police Station concerned who
conducted formal proceedings of seizure of goods in accordance with Sections
158, 161, 168 and 170 of Customs Act 1969--Order passed by Appellate Tribunal
was set aside and that of Collector of Customs ordering seizure of goods was restored.
PLJ 2000
Record
showed that confiscated goods/buses were not smuggled items--Petitioners were
owners of these buses--Notice by customs authority had been delivered on
irrelevant persons instead of petitioners--High Court declared action of
seizing by customs authorities to be without lawful authority. PLJ 2005
169. Things seized how dealt with.- (1) All things seized on the ground that they are liable to confiscation under this Act shall, without unnecessary delay, be delivered into the care of the officer of customs authorized to receive the same.
(2) If there be no such officer at hand, such things shall be carried to and deposited at the customs-house nearest to the place of seizure.
(3) If there be no custom-house within a convenient distance, such things shall be deposited at the nearest place appointed by the Collector of Customs for the deposit of things so seized.
(4) When anything liable to confiscation under this Act is seized by the appropriate officer under section 168, the Collector of Customs, or any other officer of customs authorized by him in this behalf, may notwithstanding the fact that adjudication of the case under section 179, or an appeal under section 193 or 194A or a proceeding in any court, is pending, cause the thing to be sold in accordance with the provisions of section 201 and have the proceeds kept in deposit pending adjudication of the case or as the case may be, disposal of the appeal or the final judgement by the court.
(5) If on such adjudication or, as the case may be, in such appeal or proceeding in Court, the thing so sold is found not to have been liable to such confiscation, the entire sale proceeds, after necessary deduction of duties, taxes or dues as provided in section 201, shall be handed over to the owner.
Court Decision
Selling of confiscated foreign currency by authorities--
, Under CGO 5, Custom authorities are required to deposit said foreign currency
with State Bank--No such action was taken so sale of currency is violative of
CGO 5--Under S. 169(4), sale of currency had to be made according to provisions
of S. 201 which require service of mandatory notice before sale--Currency was
sold in violation of provisions of S. 201--Held that : Custom authorities are
bound to hand over said amount of currency to petitioner. PLJ 2002
It was the duty of Custom Officers to take absolute care in matter of disposal
of currency in terms of S. 169 read with S. 201--As they failed to do so
without any just cause, they were recommended to be proceeded against under E
& D Rules. PLJ 2002
170. Procedure in respect of things seized on suspicion by the police.- (1) When any things liable to confiscation under this Act are seized by any police-officer on suspicion that they had been stolen, he may carry them to any police-station or court at which a complaint connected with the stealing or receiving of such things has been made, or an inquiry connected with such stealing or receiving is in progress, and there detain such things until the dismissal of such complaint or the conclusion of such inquiry or of any trial thence resulting.
(2) In every such case the police-officer seizing the things shall send written notice of their seizure and detention to the nearest custom-house and immediately after the dismissal of the complaint or the conclusion of the inquiry or trial, he shall cause such things to be conveyed to and deposited at, the nearest custom-house, to be there proceeded against according to law.
171. When seizure or arrest is made, reason in writing to be given.- When anything is seized, or any person is arrested under this Act, the officer or other person making such seizure or arrest shall, as soon as may be, inform in writing the person so arrested or the person from whose possession the things are seized of the grounds of such seizure or arrest.
Court Decision
Notice in writing :-- Goods which are being
played or possessed in contravention of the provisions of the Customs Act can
only be seized after a notice in writing to the person having its
possession--Issaunce of such notice is mandatory and its non-compliance is
uncurable illegality under the law. PLJ 2005
Criminal
proceedings before Court and confiscation proceedings before customs
authorities were concurrent, independent and mutually conclusive--Question as
to whether any seized goods were to be returned to persons from whose
possession they were seized has to be decided by customs authorities and not by
customs judge--Gold rennies admittedly have inscription/ embossing showing them
to be of foreign origin--Respondents, failed to show by producing any
documentary or other evidence to discharge initial burden that gold in
question, had been achieved by process or other mans having been employed in
Pakistan--In absence of any evidence to the contrary, collector of customs was
justified to draw inference that gold rennies were of foreign origin and were
smuggled goods--A.S.I on partrol duty was justified in making search and arrest
of respondent being Police Officer on patrol then reported the matter to officer
incharge of Police Station concerned who conducted formal proceedings of
seizure of goods in accordance with Sections 158, 161, 168 and 170 of Customs
Act 1969--Order passed by Appellate Tribunal was set aside and that of
Collector of Customs ordering seizure of goods was restored. PLJ 2000
Record
showed that confiscated goods/buses were not smuggled items--Petitioners were
owners of these buses--Notice by customs authority had been delivered on
irrelevant persons instead of petitioners--High Court declared action of
seizing by customs authorities to be without lawful authority. PLJ 2005
172. Power to detain packages containing certain publications imported into Pakistan.- (1) Any officer of customs duly authorized by the Collector of Customs or any other officer authorized by the Provincial Government in this behalf may detain any package, brought whether by land, air or sea into Pakistan which he suspects to contain-
(a) any newspaper or book as defined in the West Pakistan Press and Publication Ordinance, 1963 (West Pakistan Ordinance. XXX of 1963).
(b) any documents containing any treasonable or seditious matter, that is to say, any matter the publication of which is punishable under Section 123A or Section 124A, as the case may be, of the Pakistan Penal Code, 1860 (XLV of 1860), and shall forward such package to such officer as the Provincial Government may appoint in this behalf.
(2) Any officer detaining a package under sub-section (1) shall, where practicable, forthwith send by post to the addressee or consignee of such package notice of the fact of such detention.
(3) The Provincial Government shall cause the contents of such package to be examined, and if it appears to the Provincial Government that the package contains any such newspaper, book or other document, as aforesaid, it may pass such order as to the disposal of the package and its contents as it may deem proper, and, if it does not so appear, shall release the package and its contents unless the same be otherwise liable to seizure under any law for the time being in force:
Provided that any person interested in any package detained under the provisions of this section may, within two months of the date of such detention, apply to the Provincial Government for release of the same, and the Provincial Government shall consider such application and pass such order thereon as it may deem to be proper:
Provided further that if such application is rejected, the applicant may, within two months of the date of the order rejecting the application, apply to the High Court for release of the package or its contents on the ground that the package or the contents do not contain any such newspaper, book or other document.
(4) No order passed or action taken under this section shall be called in question in any court save as provided in the second proviso to sub-section (3).
Explanation.- In this section “document” includes any writing, painting, engraving, drawing or photograph, or other visible representation.
173. Procedure for disposal by High Court of applications for release of packages so detained.- Every application under the second proviso to sub-section (3) of section 172 shall be heard and determined in the manner provided by section 99D to 99F of the Code of Criminal Procedure, 1898 (Act V of 1898), by a special bench of the High Court constituted in the manner provided by section 99C of that Code.
174. Power to require production of order permitting clearance of goods imported or exported by land.- The appropriate officer may require any person-in-charge of any goods which such officer has reason to believe to have been imported, or to be about to be exported, by land from, or to, any foreign territory to produce the order made under section 83 permitting inward clearance of the goods or the order passing the bill of export or goods declaration made under section 131 permitting export of the goods:
Provided that nothing in this section shall apply to any imported goods passing from a foreign frontier to an inland customs-station by a route prescribed under clause (c) of section 9:
Provided further that the Board may, by notification in the official Gazette, direct that the provisions of this section shall not apply to any particular area adjoining foreign territory in relation to goods of any specified description or value.
175.Power to prevent making or transmission of certain signals or messages.- If an officer of customs or police or any member of the armed forces of Pakistan has reasonable grounds for suspecting that any signal or message connected with smuggling or intention or designs of smuggling any goods into or out of Pakistan is being or is about to be made or transmitted from any conveyance, house or place, he may board or enter such conveyance, house or place, and take such steps, as are reasonably necessary to stop or prevent the making or transmission of the signal or message.
176. Power to station officer in certain factories.- An officer of customs not below the rank of an Assistant Collector or Deputy Collector of Customs may, if he so deems fit, station an officer of customs in any factory or building used for commercial purposes and situated within five miles of the frontier of Pakistan with the object of ensuring that the factory or building is not used in any way for the unlawful or irregular importation or exportation of goods and the officer so stationed shall have the power to inspect at all reasonable times the records of the factory or business carried on in the building and such other powers as may be prescribed by rules.
177. Restriction on the possession of goods in certain areas.- (1) This section
shall apply to such areas adjacent to the frontier of
(2) In any area to which this section for the time being applies, no person shall have in his possession or control any such goods or class of goods in excess of such quantity or value as may from time to time be notified by the Federal Government or, with the previous approval of the Federal Government, by the Provincial Government, in the official Gazette, except under a permit granted by the Government which issued the notification in respect of the particular goods or class of goods, or by an officer authorized by such Government.
178. Punishment of persons accompanying a person possessing goods liable to confiscation.- If any two or more persons in company are found together and they or any of them, have goods liable to confiscation under this Act, every such person having knowledge of this fact is guilty of an offence and punishable in accordance with the provisions of this Act as if goods were found on such person.
Court Decision
Quashing of proceedings--Accused by his act,
no doubt, had violated two laws viz. Customs Act, 1969 and Control of Narcotics
Substances Ordinance, 1996, but his offence was same for which he could not be
tried twice--Second trial was forbidden by Art. 13 of Constitution, S. 26 of
General Clauses Act and S. 403 of Code of Criminal Procedure--Main test in such
cases was as to whether same evidence would sustain convictions under both
laws--Same evidence would have to be led in case against accused in both forums
and ingredients of both alleged offences were also same--After his trial under
Customs Act, 1969, accused could not be tried under Anti-Narcotics Laws by
special Judge, Anti-Narcotics--Second trial of accused before Special Judge
(Anti-Narcotics) was contrary not only to Constitutional protection, but was
also forbidden under other laws as well, as mentioned above and was, thus, a
nullity in eyes of law and same was quashed accordingly.
2000 P Cr. L J 204 = PLJ 2000 Cr.C. (
Conviction
and sentence recorded against petitioner--Prosecution produced no evidence that
contrabands attributed to petitioners was of foreign origin and that they had
smuggled the same conviction and sentence recorded under S. 156 (1)(89)/178,
was thus, not warranted being based on inadmissible evidence--Conviction and
sentence in question recorded against petitioner were set aside and he was
acquitted of charge. PLJ 2005
1998 Cr. L.J
1693; AIR 1941
Allegation that
accused journeyed from Karachi to Islamabad and travelled back with other
co-accused from Islamabad to Karachi--During flight entered into toilet but
could not get gold already concealed therein by co-accused--Gold recovered from
toilet of air craft by custom officials--Applicant not member of that set of
accused persons who travelled from Gulf to Pakistan with smuggled gold--Whether
accused was guilty of any offence attracted by any provision of Customs Act
1969--Question of—Held Gold had not been put in toilet by present applicant
while travelling from Islamabad to Karachi as it was already in toilets before
aircraft started its journey as domestic flight from Islamabad to Karachi--If
Customs Officer had waited till landing of aircraft to start his action against
these smugglers, it would have been possible to arrest present applicant with
some quantity of gold--In absence of any recovery of smuggled gold from
applicant and without any specific role played by him in this trip, it may not
be possible for this court to reach any definite conclusion regarding offence
committed by applicant with reference to section 178 of Customs Act or Section
202 PPC. It is only trial court which can decide this point with certainty, and
that too, after recording evidence in this case about exact nature of offence
committed by accused--These realities have made out a case of further enquiry
within meaning of section 497(2) Cr.P.C. -Bail granted. PLJ 1997 Cr.C- (
Neither any recovery was effected from petitioner nor there is any evidence that he procured heroin nor there is any evidence to indicate that he passed on heroin to his co - accused - petitioner is in custody since 27/5/1997 and is not required for purpose of further investigation - In these circumstances this application is allowed and petitioner is allowed bail provided he furnishes bail bonds in sum of Rs. One Lac with two sureties each in like amount to satisfaction of Trial Court - Bail allowed. 1999 P.Cr.L.J 348
Vital
evidence on factual aspect of case was absolutely inconclusive--Accused cannot
be deemed guilty for crime on basis of probabilities and high presumptions--No
one is to be construed into any crime without legal proof--Conviction of
petitioner was thus, not warranted on basis of evidence on record. PLJ 2005
[179. Power of adjudication.- [(1)
Subject to sub-section (2), in cases involving confiscation of goods or
imposition of penalty under this Act or the rules made thereunder, the
jurisdiction and powers of the Officers of Customs in terms of amount of duties
and other taxes involved, excluding the conveyance, shall be as follows:-
|
(i) |
Additional Collector |
without limit. |
|
(ii) |
Deputy Collector |
not exceeding five hundred thousand rupees. |
|
(ii) |
Assistant Collector |
not exceeding two hundred and fifty thousand rupees. |
(2) Notwithstanding the provisions of sub-section (1), the Board may, by notification in the official Gazette, fix or vary the jurisdiction and powers of any Officer of Customs or a class of officers, and may also assign or transfer any case to any Collector of Customs, irrespective of the territorial jurisdiction.
(3) The cases shall be decided within ninety days of the receipt of the contravention report or within such period extended by the Collector for which reasons shall be recorded in writing, but such extended period shall in no case exceed ninety days.
(4) The Board shall have the powers to regulate the system of adjudication including transfer of cases and extension of time-limit in exceptional circumstance.]
[(5) Notwithstanding anything contained in this Act, or any other law for the time being in force and notwithstanding any decision or judgment of any forum, authority or court whether passed on or before the commencement of the Finance Act, 2006, the time for adjudication in all the cases pending as on first day of July, 2006, for whatsoever reasons, shall be deemed always to have been extended up to 31st day of December, 2006.]
Court Decision
Question
as to whether any seized goods were to be returned to persons from whose
possession they were seized has to be decided by customs authorities and not by
customs judge--Gold rennies admittedly have inscription/ embossing showing them
to be of foreign origin--Respondents, failed to show by producing any
documentary or other evidence to discharge initial burden that gold in
question, had been achieved by process or other mans having been employed in
Pakistan--In absence of any evidence to the contrary, collector of customs was
justified to draw inference that gold rennies were of foreign origin and were
smuggled goods--A.S.I on partrol duty was justified in making search and arrest
of respondent being Police Officer on patrol then reported the matter to
officer incharge of Police Station concerned who conducted formal proceedings
of seizure of goods in accordance with Sections 158, 161, 168 and 170 of
Customs Act 1969--Order passed by Appellate Tribunal was set aside and that of
Collector of Customs ordering seizure of goods was restored. PLJ 2000
179 A Omitted
180. Issue of show-cause notice before confiscation of goods or imposition of penalty.- No order under this Act shall be passed for the confiscation of any goods or for imposition of any penalty on any person unless the owner of the goods, if any, or such person-
(a) is informed in writing (or if the person concerned consents in writing, orally) of the grounds on which it is proposed to confiscate the goods or to impose the penalty;
(b) is given an opportunity of making a representation in writing (or if the person concerned indicates in writing his preference for it orally) within such reasonable time as the appropriate officer may specify, against the proposed action; and
(c) is given a reasonable opportunity of being heard personally or through a counsel or duly authorized agent.
Court Decision
Failure to give show-cause notice within stipuled period
of two months :-- Non-recording of reasons in order of extension of
time--Validity--Seizure of goods could be either of two forms i.e, either
customs Authorities could take goods away and keep them under their own custody
or where the same was not possible, could be kept with owner after obtaining
bond for their safe custody--Period for seizure, however, should not be
prolonged--Customs Authority must give show-cause notice for confiscation of
goods in question, within two months of seizure failing which, person from whom
goods were recovered would earn right to be restored possession of those
goods--Such period of two months could be extended for reasons to be recorded
in writing–Collector of customs could not abdicate his authority to
sub-ordinate functionary and pass mechanical order, he has to justify extension
by reasons-Orders of extension of specified data by Collector of Customs could
not be deemed to be orders within meaning of proviso to sub-section (2) of S.
168, Customs Act 1969--No show-cause notice having been issued within period of
two months of seizure as contemplated in law orders in question, were not
sustainable in law–Owner of goods thus, had earned right for return of goods,
in question--Non-compliance of S. 168(2) Customs Act 1969, would create right
of return of goods, however, would not absolve delinquent from liability of
fine if the same was warranted in law--Subject matter of petition was directed
to be returned to petitioner. PLJ 2000
Notice in writing--Held: Goods which are being
played or possessed in contravention of the provisions of the Customs Act can
only be seized after a notice in writing to the person having its
possession--Issaunce of such notice is mandatory and its non-compliance is
uncurable illegality under the law. Record showed that confiscated goods/buses
were not smuggled items--Petitioners were owners of these buses--Notice by
customs authority had been delivered on irrelevant persons instead of petitioners--High
Court declared action of seizing by customs authorities to be without lawful
authority. PLJ 2005
181. Option to pay fine in lieu of confiscated goods.- Whenever an order for the confiscation of goods is passed under this Act, the officer passing the order may give the owner of the goods an option to pay in lieu of the confiscation of the goods such fine as the officer thinks fit:
Provided that the Board may, by an order, specify the goods or class of goods where such option shall not be given:
Provided further that the Board may, by an order, fix the amount of fine which, in lieu of confiscation, shall be imposed on any goods or class of goods imported in violation of the provisions of section 15 or of a notification issued under section 16, or any other law for the time being in force.
Explanation.- Any fine in lieu of confiscation of goods imposed under this section shall be in addition to any duty and charges payable in respect of such goods , and of any penalty that might have been imposed in addition to the confiscation of goods.
Court Decision
Applicability--Provision as contained in Ss. 32 and 181 of Customs Act 1969, would not be applicable in present case which classic example of forgery and fraud committed by respondent knowingly and deliberately for evasion of customs duty--Customs Authorities have proved and established that fraud practiced upon them was intentional and deliberate as fake and forged invoices were prepared and thus, such forgery cannot be equated with that of bona fide mistake or an inadvertent omission--Appellant was, thus not entitled to get any relief in view of his fraudulent conduct. Order passed by Additional Collector Customs whereby he had ordered confiscation of respondents, consignment was neither laconic nor non-speaking in as much as every aspect of controversy had been dilated upon and decided in comprehensive manner by giving cogent reasons wherein all contentions raised before him were examined and decided elaborately and comprehensively--Provisions as contained in SRO dated 15.6.2002, cannot be made applicable in view of chequered history of case and naked fraud committed by respondent option to pay fine in lieu of confiscation for such consignments, which were brought by playing fraud upon Customs Authorities which has been proved and established to the hilt, cannot be given to respondent orders passed by Customs, Excise and Sales Tax Appellate Tribunal and judgment passed by High Court, giving option respondent to pay fine in lieu of confiscation of consignment were set aside while that of Additional Collector Customs relating to confiscation of consignment was maintained. PLJ 2005 SC 1166
PLD 1959 SC 364 ref.
Option to pay fine in lieu of confiscated goods--Exceptions--Officer confiscating goods under Customs Act was empowered to give owner of goods, option in lieu of confiscation of goods and such fine as deems proper, in addition any duty or charges payable in respect of such goods--Board of Revenue, however, can specify goods or classes of goods qua which such option would not be given. PLJ 2003 Lahore 628 (DB) Discretionary powers of customs authorities to allow redemption of goods subject to payment of customs duty and fine--Competent Authority had issued notification dated 17th December 1998, to regulate exercise of discretionary powers--Adjudicating Authority having not exercised its discretionary powers in terms of notification in question, confiscation of the same was not warranted--Case was remanded to Adjudicating Authority to decide respondent’s cases afresh keeping in view the fact as to whether Motor-Cycles brought into Pakistan fall within definition of smuggled goods in terms of S. 2 of Customs Act 1969, if so, to what effect; and whether Adjudicating Authority was not bound to give option under S. 181 of Customs Act 1969 to respondents to get Motorcycles released subject to payment of customs duty and fine.PLJ 2005 SC 998
1998 CLC 1664 and 2003 PTD 1879, ref.
Release
of confiscated vehicles by Tribunal--Tribunal has over looked point that
option granted to owners in S. 181, Customs Act 1969, was subject to first
Proviso of section which authorises Board of Revenue to specify goods or
classes of good, where such option cannot be given. PLJ
2003
182. Vesting of confiscated property in the Federal Government.- When any goods are confiscated under this Act, they shall forthwith vest in the Federal Government, and the officer who orders confiscation shall take and hold possession of the confiscated goods:
Provided that the Board may authorise the use of confiscated vehicles for operational purposes by the Board or, with approval of the Board, its subordinate offices.
183. Levy of penalty for departure without authority or failure to bring-out.- (1) If any conveyance actually departs without a port clearance or permission in writing or, in the case of a vessel, after having failed to bring-to when required at any station appointed under section 14, the penalty to which the person-in-charge of such conveyance is liable may be adjudged by the appropriate officer of any customs-station, to which, such conveyance proceeds, or in which it for the time being is.
(2) A certificate in respect of such departure or failure to bring-to when required, purporting to be signed by the appropriate officer of the customs-station from which the conveyance is stated to have so departed, shall be prima facie proof of the fact so stated.
184. Power to try summarily.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), a Special Judge may, if he thinks fit, try in a summary way, any offence under this Act where the value of the goods involved in such offence does not exceed one thousand rupees.
(2) In the trial of an offence under sub-section (1), the provisions of sub-section (1) of section 262 and sections 263, 264 and 265 of the said Code shall, so far applicable and with the necessary adaptation, apply.
(3) No proceeding under this section shall be called in question merely on the ground that the value of the goods involved was more than the limit specified in sub-section (1).
Explanation.- For the purpose of this section, “value”-
(i) in the case of goods,
whether imported or indigenous, which are lawfully sold in open market in
(i) in the case of goods, whether imported or indigenous, the price of which has been fixed by the Government, means the price so fixed; and
(iii) in the case of goods the import of which is absolutely prohibited, means the price of similar or comparable indigenous goods sold in open market in Pakistan or, where no such goods are sold in open market in Pakistan, the price fixed by the Federal Government, by general or special order.
185. Special Judges.- (1) The Federal Government may by notification in the official Gazette, appoint as many Special Judges as it considers necessary and, where it appoints more than one Special Judge, shall specify in the notification the headquarters of each Special Judge and the territorial limits within which he shall exercise jurisdiction under this Act.
(2) No person shall be appointed as a Special Judge unless he is or has been a Sessions Judge.
(3) Notwithstanding the provisions of sub-sections (1) and (2), the Federal Government may, for the areas comprising the districts of Lasbela, Turbat, Panjgoor and Gawadur, appoint any other officer as Special Judge and specify in the notification his headquarters and the limits of his territorial jurisdiction under this Act.
(4) If a Special Judge is, for any reason, termporarily unable to perform his duties under this Act, he may generally or specially authorise the Sessions Judge of the district to perform such duties of an urgent nature as he may deem proper and such Sessions Judge shall perform such duties.
185A. Cognizance of offences by Special Judges.- (1) Notwithstanding anything contained in this Act or any other law for the time being in force, a Special Judge may, within the limits of his jurisdiction, take cognizance of any offence punishable under this Act-
(a) upon a report in writing made by an officer of customs or by an officer-in-charge of a police-station or by any other officer especially authorized in this behalf by the Federal Government; or
upon receiving a complaint or information of facts constituting such offence made or communicated by any person; or
(c)
(o) upon his own knowledge acquired during any proceeding before him under this Act or under the Prevention of Smuggling Act,1977.
(2) Upon the receipt of report under clause (a) of sub-section (1), the Special Judge shall proceed with the trial of the accused.
(3) Upon the receipt of a complaint or information under clause (b), or acquired in the manner referred to in clause (c) of sub-section (1), the Special Judge may, before issuing a summon or warrant for appearance of the person complained against, hold a preliminary inquiry for the purpose of ascertaining the truth or falsehood of the complaint, or direct any Magistrate or any officer of customs or any police officer to hold such inquiry and submit a report, and such Magistrate or officer shall conduct such inquiry and make report accordingly.
(4) If, after conducting such inquiry or after considering the report of such Magistrate or officer, the Special Judge is of the opinion that-
(a) there is no sufficient ground for proceeding, he may dismiss the complaint, or
(b) there is sufficient ground for proceeding, he may proceed against the person complained against in accordance with law.
(5) A Special Judge or a Magistrate or an officer holding inquiry under sub-section (3) may hold such inquiry, as early as possible, in accordance with the provisions of section 202 of the Code of Criminal Procedure, 1898(Act V of 1898).
185-B. Special Judge, etc. to have exclusive jurisdiction.- Notwithstanding anything contained in this Act or in any other law for the time being in force-
(a) no court other than the Special Judge having jurisdiction, shall try an offence punishable under this Act;
(b) no other court or officer, except in the manner and to the extent specifically provided for in this Act, shall exercise any power, or perform any function under this Act;
(c) no court, other than the Special Appellate Court, shall entertain, hear or decide any application, petition or appeal under Chapters XXXI and XXXII of the Code of Criminal Procedure, 1898 (Act V of 1898), against or in respect of any order or direction made under this Act; and
(d) no court, other than the Special Judge or the Special Appellate Court, shall entertain any application or petition or pass any order or give any direction under Chapters XXXVII, XXXIX, XLIV or XLV of the said Code.
185C. Provisions of Code of Criminal Procedure,1898, to apply.- (1) The provisions of the Code of Criminal Procedure, 1898(Act V of 1898), so far as they are not inconsistent with the provisions of this Act, shall apply to the proceedings of the court of a Special Judge and such court shall be deemed to be a Court of Session for the purposes of the said Code and the provisions of Chapter XXIIA of the Code, so far as applicable and with the necessary modifications, shall apply to the trial of cases by the Special Judge under this Act.
(2) For the purposes of sub-section (1), the Code of Criminal Procedure, 1898(Act V of 1898), shall have effect as if an offence punishable under this Act were one of the offences referred to in sub-section (1) of section 337 of the Code.
185D Transfer of cases.- (1) Where more than one Special Judge are appointed within the territorial jurisdiction of a Special Appellate Court, the Special Appellate Court, and where not more than one Special Judge is so appointed, the Federal Government, may, by order in writing direct the transfer, at any stage of the trial, of any case from the court of one Special Judge to the Court of another Special Judge for disposal, whenever it appears to the Special Appellate Court or, as the case may be, the Federal Government, that such transfer will promote the ends of justice or tend to the general convenience of the parties or witnesses.
(2) In respect of a case transferred to a Special Judge under sub-section(1), such Special Judge shall not by reason of the said transfer, be bound to recall and rehear any witness whose evidence has been recorded in the case before the transfer and may act upon the evidence already recorded or produced before the court which tried the case before the transfer.
185E. Place of sittings.- A Special Judge shall ordinarily hold sittings at his headquarters but, keeping in view the general convenience of the parties or the witnesses, he may hold sittings at any other place.
185F. Appeal to Special Appellate Court.- (1) Any person, including the Federal Government, the Central Board of Revenue, the Collector of Customs or any other officer authorized in this behalf by the Board, aggrieved by any order passed or decision made by a Special Judge under this Act or under the Code of Criminal Procedure,1898(Act V of 1898), may, subject to the provisions of Chapters XXXI and XXXII of the Code, within sixty days from the date of the order or decision, prefer an appeal or revision to the Special Appellate Court, and in hearing and disposing of such appeal or revision, such Court shall exercise all the powers of a High Court under the said Code.
(2) Except as otherwise provided in sub-section (1), the provisions of the Limitation Act,1908 (Act IX of 1908), shall apply to an appeal or a revision preferred under sub-section (1).
Court Decision
Unlike Criminal Procedure Code 1898, which provides separate provisions for filing appeal against conviction in terms of Ss. 410 and 417 Cr.P.C. against acquittal, Customs Act, 1969, provides only one section for appeal, both against conviction and acquittal. PLJ 2005 SC 1218
Appeal
filed by Director Intelligence and Investigation (Customs and Excise) against
acquittal of accused--Competency--Appeal filed under S. 185-F of Customs Act
1969 is to be read with S. 417(2-A) of Cr.P.C. which postulate that any person
aggrieved of order of acquittal can file appeal, thus, it is not necessary that
appeal. can only be ,filed by Federal or Provincial Government--Director
Intelligence and investigation (Customs and Excise) being aggrieved person (who
had registered case against accused) was, thus, competent to file appeal, if
accused was acquitted. PLJ 2003 Cr.C. (
Expression, “Any person” as used in Section 185-F, Customs Act, 1969--Meaning Scope and import of--Expression, “any person” as used in S. 185-F, Customs Act, 1969, has been qualified by two expressions viz. “Including the Federal Government” and “aggrieved by an order”--Expression “any person” is circumscribed by the context in which it appears in appeal or revision--Word “any person” aggrieved would mean a person who is convicted in a case of tax evasion or a related criminal transaction or a person or authority who in discharge of his function, under the law is interested in recovering tax or prosecuting a tax evader or a person who is aggrieved of adverse remarks in the order passed by trial Court which is sought to be challenged in appeal or revision--Use of word “including” has been used in the sense of “moreover” or “as well”--Thus “including” the Federal Government would mean that besides “Any Person”, Federal Government if aggrieved in context in question, can also appeal. PLJ 2005 SC 1218
Allegation
that accused journeyed from Karachi to Islamabad and travelled back with other
co-accused from Islamabad to Karachi--During flight entered into toilet but
could not get gold already concealed therein by co-accused--Gold recovered from
toilet of air craft by custom officials--Applicant not member of that set of
accused persons who travelled from Gulf to Pakistan with smuggled gold--Whether
accused was guilty of any offence attracted by any provision of Customs Act
1969--Question of—Held Gold had not been put in toilet by present applicant
while travelling from Islamabad to Karachi as it was already in toilets before
aircraft started its journey as domestic flight from Islamabad to Karachi--If Customs
Officer had waited till landing of aircraft to start his action against these
smugglers, it would have been possible to arrest present applicant with some
quantity of gold--In absence of any recovery of smuggled gold from applicant
and without any specific role played by him in this trip, it may not be
possible for this court to reach any definite conclusion regarding offence
committed by applicant with reference to section 178 of Customs Act or Section
202 PPC. It is only trial court which can decide this point with certainty, and
that too, after recording evidence in this case about exact nature of offence
committed by accused--These realities have made out a case of further enquiry
within meaning of section 497(2) Cr.P.C. -Bail granted. PLJ 1997 Cr.C- (
Collector whether aggrieved/person to file appeal--FIR having been registered by Assistant Collector concerned, Collector was aggrieved person of finding of Court was against collector state and he could file appeal against acquitted of persons against whom F.I.R. had been lodged. PLJ 2005 SC 1218
185G. Persons who may conduct prosecution etc.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898(Act V of 1898), a Special Prosecutor appointed under section 47 of the Prevention of Smuggling Act,1977, shall be competent to conduct prosecution before a Special Judge for and on behalf of the Federal Government and to withdraw prosecution when so required by the Federal Government.
(2) A law officer appointed under the Central Law Officers Ordinance,1970 (Ordinance VII of 1970) or an advocate authorised by the Board or by an officer subordinate to it shall be competent to conduct proceedings before a Special Appellate Court on behalf of the Federal Government and to withdraw such proceedings when so required by the Federal Government.
Court Decision
Central Law Officers Ordinance, 1970, S. 4-A--Appeal filed by Collectorate of Customs through Private Counsel--Competency--Law makers did not intend to restrict representation by law officers alone to the exclusion of private counsel if competent authority in Federal Government so decides--Law Officers appointed under the law to conduct proceedings, before Special Appellate Court Customs on behalf of Federal Government without tendering power of attorney on behalf of Government as would be required from private practicing counsel. PLJ 2005 SC 1218
186. Detention of goods pending payment of fine or penalty.- (1) When any fine or penalty has been imposed, or while imposition of any fine or penalty is under consideration, or pending any inquiry or investigation, in respect of any goods, such goods shall not be removed by the owner until such fine or penalty has been paid or such inquiry and investigation has been completed.
(2) When any fine or penalty has been imposed in respect of any goods, the appropriate officer may detain any other goods belonging to the same owner pending payment of such fine or penalty.
187. Burden of proof as to lawful authority etc.- When any person is alleged to have committed an offence under this Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force, the burden of proving that he had such authority, permit, licence or other document shall lie on him.
Court Decision
In
order to draw a presumption u/S. 187 of Customs Act, two ingredients must be
proved, firstly that there is reasonable belief that goods are smuggled and
secondly goods have been seized from accused. PLJ
1998 Cr.C. (
188. Presumption as to documents in certain cases.- Where any document is produced by any person under this Act or has been seized under this Act from the custody or control of any person, and such document is tendered by the prosecution in evidence against him, the Special Judge shall,-
(a) unless the contrary is proved by any such person, presume-
(i) the truth of the contents of such document;
(ii) that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the Special Judge may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person’s handwriting, and in the case of a document executed or attested that it was executed or attested by the person by whom it purports to have been so executed or attested;
(b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence:
Provided that where the Customs Computerized System is operational, system generated documents shall be accepted as true and correct.
189. Notice of conviction to be displayed.- (1) Upon the conviction of any person for the offence of smuggling, the Federal Government may require him to exhibit in or outside, or both in and outside his place of business, if any, notices, of such number, size and lettering, and placed in such positions and containing such particulars relating to conviction as it may determine, and to keep them so exhibited continuously for a period not less than three months from the date of conviction; and, if he fails to comply fully with the requirement, he shall be deemed to have committed a further offence under this Act of the nature of the original offence for which he was convicted.
(2) If any person so convicted refuses or fails to comply fully with any such requirement, any officer authorized in that behalf by an order of the Federal Government in writing may, without prejudice to any proceedings which may be brought in respect of any such refusal or failure, affix the notices in or outside, or both in and outside, the place of business of such person in accordance with the requirement of the Federal Government in pursuance of sub-section (1).
(3) If, in any case, the Federal Government is satisfied that the exhibition of notices in accordance with the requirements of the provisions of sub-section (1) or sub-section (2) will not effectively bring the conviction to the notice of persons dealing with the convicted person, the Federal Government may, in lieu of, or in addition to any such requirement, require the convicted person to exhibit for such period, not being a period less than three months, on such stationery used in his business as may be specified in the requirement, a notice placed in such position and printed in type of such size and form and containing such particulars relating to the conviction as may be specified in the requirement; and, if he fails to comply fully with the requirement, he shall be deemed to have committed a further offence under this Act of the nature of the original offence for which he was convicted.
190. Power to publish conviction.- If the Federal Government is satisfied that it is necessary so to do, the conviction and the particulars relating to the conviction of any person for the offence of smuggling may be published in the official Gazette.
191. Imprisonment may be of either description.- Imprisonment for any offence under this Act may, in the discretion of the Special Judge, be either simple or rigorous.
192. Duty of certain persons to give information.- (1) Any person who comes to know of the commission of any offence under this Act, or an attempt or likely attempt to commit any such offence, shall, as soon as may be, give information thereof in writing to the officer-in-charge of the nearest custom- house or customs-station, or if there is no such custom-house or customs-station, to the officer-in-charge of the nearest police-station.
(2) The officer-in-charge of a police-station who receives any information mentioned in sub-section (1) shall as soon as possible communicate it to the officer-in-charge of the nearest custom-house or customs-station.
CHAPTER XIX
APPEALS AND REVISIONS
[193 Appeals to Collector (Appeals).- (1) Any person [other than] an officer of customs aggrieved by any decision or order passed under [sections 79, 80 and 179 of this Act by an officer of customs not below the rank of an Assistant Collector] [*****] may prefer appeal to the Collector (Appeals) within thirty days of the date of communication to him of such decision or order:
Provided that an appeal preferred after the expiry of thirty days may be admitted by the Collector (Appeals) if he is satisfied that the appellant had sufficient cause for not preferring the appeal within that period.
(2) An appeal under this section shall be in such form and shall be verified in such manner as may be prescribed by rules made in this behalf.
(3) An appeal made under this Act shall be accompanied by a fee of one thousand rupees to be paid in the manner that may be prescribed by the Board.
193-A Procedure in appeal.- (1) The Collector (Appeals) shall give an opportunity to the appellant to be heard if he so desires.
(2) The Collector (Appeals) may, at the hearing of an appeal, allow the appellant to go into any ground of appeal not specified in the ground of appeal, if the Collector (Appeals) is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable.
(3) The Collector (Appeals) may, after making such further inquiry as may be necessary, pass such order as he thinks fit, confirming, modifying or annulling the decision or order appealed against, or may refer the case back to the adjudicating authority with such direction as he may think fit for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary:
Provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order:
Provided further that, where the Collector (Appeals) is of opinion that any duty has not been levied or has been short-levied or erroneously refunded, no order requiring the appellant to pay any duty not levied, short-levied or erroneously refunded shall be passed unless the appellant is given notice within the time-limit specified in section 32 to show cause against the proposed order.
(4) The order of the Collector (Appeals) disposing of the appeal shall be in writing and shall state that points for determination, the decision thereon and the reasons for the decision.
(5) On the disposal of the appeal, the Collector (Appeals) shall communicate the order passed by him to the appellant, the adjudicating authority and the Collector of Customs.
194. Appellate Tribunal.- (1) The Federal Government shall constitute an Appellate Tribunal to be called the Customs, Excise and Sales Tax Appellate Tribunal consisting of as many judicial and technical members as it thinks fit to exercise the powers and discharge the functions conferred on the Appellate Tribunal by this Act.
(2) A judicial member shall be a person who has been a Judge of the High Court, or is or has been a District Judge and is qualified to be a Judge of High Court, or is or has been an advocate of a High Court and is qualified to be a Judge of a High Court.
(3) A technical member shall be an officer of Customs and Excise Group equivalent in rank to that of a Member, Central Board of Revenue.
(4) The Federal Government shall appoint one of the members of the Appellate Tribunal to be the Chairman thereof.
(5) The terms and conditions of appointment of the Chairman and judicial and technical members shall be such as the Federal Government may determine.
194-A. Appeals to the Appellate Tribunal.- (1) Any person or an officer of Customs aggrieved by any of the following orders may appeal to the Appellate Tribunal against such orders:-
(a) Omitted.
(ab) an order passed by the Collector (Appeals) under section 193;
(b) Omitted.
(a) an order passed under section 193, as it stood immediately before the appointed day;
(b) an order passed by the Board or the Collector of Customs under section 195:
Provided that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in sub-section (1) where-
(i) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 181; or
(ii) in any disputed case other than a case where the determination of any question having a relation to rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or
(iii) the amount of fine or penalty determined by such order;
does not exceed fifty thousand rupees.
(2) The Board or the Collector of Customs may, if it or, as the case may be, he is of the opinion that an order passed by the Collector (Appeals) under section 193 is not legal or proper, direct the appropriate officer to appeal on its or, as the case may be, his behalf to the Appellate Tribunal against such order.
(3) Every appeal under this section shall be filed within sixty days from the date on which the decision or order sought to be appealed against is communicated to the Board or the Collector of Customs, or as the case may be, the other party preferring the appeal.
(4) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within thirty days of the receipt of the notice, a memorandum of cross-objections verified in such manner as may be specified by rules made in this behalf against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3).
(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section(3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.
(6) An appeal to the Appellate Tribunal shall be in such form and shall be verified in such manner as may be specified by the rules made in this behalf and shall, except in the case of a memorandum of cross-objections referred to in sub-section (4), be accompanied by a fee of one thousand rupees.
(7) All cases pending, immediately before the commencement of the Finance Ordinance, with the Collector(Appeals) shall stand transferred to the Appellate Tribunal for disposal in accordance with law. .
Court Decision
Expression
an officer of customs” was made after expression any person” and same became
effective from 19th June 2000 in S. 194-A of Customs Act 1969--Prior to such
amendment “an officer of the customs” was not competent to file appeal under S.
194-A of Customs Act 1969--Order against which Collector of Customs had filed
appeal, was passed in revision by Member of Customs, Central Board of Revenue
on 3/6.5.2000 on said date when decision was made and when same was conveyed on
19.5.2000, to Collector Customs, he was not. competent to file appeal--Order
passed by Revisional Authority had thus attained finality--Subsequently
amendment in law clothing Collector with right to file appeal on 19th June
2000, would not tend to destroy right of appellant acquired by it on 19th June
2000. PLJ 2004
194-B. Orders of Appellate Tribunal.- (1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary:
Provided that the appeal shall be decided within sixty days of filing the appeal or within such extended period as the Tribunal may, for reasons to be recorded in writing fix, provided that such extended period shall not in any case exceed ninety days.
(2) The Appellate Tribunal may, at any time within three years from the date of order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under-sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Collector of Customs or the other party to the appeal:
Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this sub-section, unless the Appellate Tribunal has given notice to the party of its intention to do so and has allowed a reasonable opportunity of being heard.
(3) The Appellate Tribunal shall send a copy of every order passed by it under this section, disposing of an appeal, to the officer of Customs and in valuation cases also to the Controller, Valuation, and the other party to the appeal.
(4) Save as otherwise expressly provided in section 196, an order passed by the Appellate Tribunal in appeal shall be final.
Court Decision
Appeal
filed by appellant before Tribunal alongwith other appeals were
accepted--Appeal of appellant omitted to be mentioned in original order--Filing
of application by appellant for rectification of accidental slip, whereby his
order in original was excluded amongest the list of facsimile impugned
orders--Dismissal of application on the ground of time barred--Held: Clerical
or arithmetic mistakes or errors in a judgment or order arising therein from
any accidental slip or omission, are to be corrected by Court itself or on the
application of any of the parties and this principle of S. 152 CPC is an
exception to the rule with respect to the attaining of finality of judgments as
reflected in O. XX, R. 2 CPC--Further held: Such error is not really a
rectification as envisaged by S. 194-B(2) of the Act--Such error as the present
one where name of appellant has not been included in the list to which the
order of the Tribunal was made applicable in an accidental slip or at the most
a clerical error which attracts the provisions of S. 152 CPC--Such like
error/accidental slip is to be cured without any shadow of statutory
limitation--Case remanded to Tribunal with direction to consider applying the
principle laid down in the said order to the appellant as well through addition
of his name in the list of cases to which the order under reference attracts--Appeal
disposed of. PLJ 2005
PLD 1992 Lah. 261; 1970 SCMR 133;
1990 CLC 1351; 1993 CLC 535; 1986 CLC 552; PLJ 1987 Lah. 78; AIR 1939
194-C. Procedure of Appellate Tribunal.- (1) The powers and functions of the Appellate Tribunal may be exercised and discharged by Benches constituted by the Chairman from amongst the members thereof.
(2) Subject to the provisions contained in sub-sections (3) and (4), a Bench shall consist of one judicial member and one technical member.
(3) Every appeal against a decision or order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment, shall be heard by a Special Bench constituted by the Chairman for hearing such appeals and such Bench shall consist of not less than two members and shall include at least one judicial member and one technical member:
Provided that the Chairman may, for reasons to be recorded in writing, constitute Benches including special Benches consisting of –
(a) two or more technical members; or
(b) two or more judicial members:
Provided further that any Bench referred to in clause (a) shall not hear the matters involving question of law.
(3A) Notwithstanding anything contained in sub-sections (2) and (3), the Chairman may constitute as many Benches consisting of a single member as he may deem necessary to hear such cases or class of cases as the Federal Government may, by order in writing, specify.
Explanation:- For the purposes of this sub-section, the expression “cases” means the matters involving decisions other than decisions in relation to a question of law under this Act or the Federal Excise Act, 2005 or as the case may be, the Sales Tax Act, 1990.
(4) The Chairman or any other member of the Appellate Tribunal authorized in this behalf by the Chairman may, sitting singly, dispose of any case which has been allotted to the bench of which he is a member where-
(a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 181; or
(b) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or
(c) the amount of fine or penalty involved does not exceed [fifteen hundred thousand rupees].
(5) If the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ and the case shall be referred by the Chairman for hearing on such point or points by one or more of the other members of the Appellate Tribunal, and such point or points shall be decided according to the opinion of the majority of the members of the Appellate Tribunal who have heard the case including those who first heard it:
Provided that, where the members of a Special Bench are equally divided, the points on which they differ shall be decided by the Chairman.
(6) Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of the Benches thereof in all matters arising out of the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings.
(7) The Appellate Tribunal shall, for the purposes of discharging its functions, have the same powers as are vested in a court under the Code of Civil Procedure, 1908(V of 1908), when trying suit in respect of the following matters, namely:-
(a) discovery and inspection;
(b) enforcing the attendance of any person and examining him on oath;
(c) compelling the production of books of account and other documents; and
(d) issuing commissions.
(8) Any proceeding before the Appellate Tribunal shall be deemed to be judicial proceeding within the meaning of sections 193 and 228 and for the purpose of section 196 of the Pakistan Penal Code (Act XLV of 1860), and the Appellate Tribunal shall be deemed to be a Court for all the purposes of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898).
[195. Powers of Board or Collector to pass certain orders.- (1) The Board or the Collector of Customs may, within his jurisdiction, call for and examine the records of any proceedings under this Act for the purpose of satisfying itself or, as the case may be, himself as to the legality or propriety of any decision or order passed by a subordinate officer and may pass such order as it or he may think fit:
Provided that no order confiscating goods of greater value or enhancing any fine in lieu of confiscation, or imposing or enhancing any penalty, or requiring payment of any duty not levied or short-levied shall be passed unless the person affected thereby has been given an opportunity of showing cause against it and of being heard in person or through a counsel or other person duly authorized by him.
(2) No record of any proceedings relating to any decision or order passed by an officer of customs shall be called for or examined under sub-section (1) after the expiry of two years from the date of such decision or order.]
195-A. Omitted].
195-B. Deposit, pending appeal, of duty demanded or penalty levied.- Where, in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty demanded or the penalty levied:
[Provided that where in any particular case the Collector (Appeals) or the Appellate Tribunal is of the opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Collector (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he, or it, may deem fit to impose so as to safeguard the interest of revenue.]
[Provided further that an order dispensing with such deposit shall, without effecting the appeal, cease to have effect on the expiration of a period of six months following the day on which it is made unless the appeal is finally decided earlier and nothing in the order dispensing with such deposit which as ceased to have effect shall debar the appropriate officer to recover the amount of the duty demanded or penalty levied.]
[195-C. [Alternative] Dispute Resolution.- (1) Notwithstanding any other provision of this Act, or the rules made thereunder, any aggrieved person in connection with any matter of Customs pertaining to liability of customs duty, admissibility of refund or rebate, waiver or fixation of penalty or fine, confiscation of goods, relaxation of any time period or procedural and technical condition may apply to the Central Board of Revenue for the appointment of a committee for the resolution of any hardship or dispute mentioned in detail in the application.
[Provided that only those disputes which are under litigation, in any court of law or an appellate authority, shall be entertained for dispute resolution under the provisions of this section.]
(2) The Central Board of Revenue, after examination of the application of an aggrieved person, shall appoint a committee consisting of an officer of customs and two persons from a notified panel of [retired District and Sessions Judge and retired Judges of High Court or] Chartered or Cost Accountants, Advocates Tax Consultants or reputable taxpayers for the resolution of the hardship or dispute. (3) The committee constituted under sub-section (2) shall examine the issue and may, if it deems necessary, conduct inquiry, seek expert opinion, direct any officer of customs or any other person to conduct an audit and make recommendations, within forty-five days of its constitution,] in respect of the resolution of dispute as it may deem fit :]
[Provided that the period of forty-five days stipulated for making the recommendations may be extended by the Board for another forty-five days on specific request of the committee.]
(4) The Board may, on the recommendation of the committee, pass such order, as it may deem appropriate.
(5) The aggrieved person may make the payment of customs duty and other taxes as determined [if any] by the Board in its order under sub-section (4) and all decisions, orders and judgments made or passed shall stand modified to that extent and all proceedings under this Act or the rules made thereunder by any authority shall abate:
Provided that, in case the matter is already sub-judice before any authority, or tribunal or the court, an agreement made between the aggrieved person and the Board in the light of recommendations of the committee shall be submitted before that authority, tribunal or the court for consideration and order as deemed appropriate.
(6) Omitted.
(7) The Board may, by notification in the official Gazette, make rules for carrying out the purposes of this section.]
[196. Reference to High Court. –[ (1) Within ninety days of the date on which the aggrieved person or Collector, as the case may be, was served with order of the Appellate Tribunal under sub-section (3) of section 194B, the aggrieved person or any officer of Customs not below the rank of an Additional Collector, authorized by the Collector, may prefer an application, in the prescribed form along with a statement of the case, to the High Court, stating any question of law arising out of such order.]
(2) The statement to the High Court, referred to in sub-section (1), shall set out the facts, the determination of the Appellate Tribunal and the question of law, which arises out of such order.
(3) Where, on an application made under sub-section (1), the High Court is satisfied that a question of law arises out of the order, referred to in sub-section (1), may proceed to hear the cases.
(4) A reference to the High Court under this section shall be heard by a Bench of not less than two judges of the High Court and, in respect of the reference, the provisions of section 98 of the Code of Civil Procedure, 1908 (Act V of 1908), shall apply so far as may be, notwithstanding anything contained in any other law for the time being in force.
(5) The High Court upon hearing a reference under this section shall decide the question of law raised by the reference and pass judgment thereon specifying the grounds on which such judgment is based and the Tribunal’s order shall stand modified accordingly. The Court shall send a copy of the judgment under the seal of the Court to the Appellate Tribunal.
(6) Notwithstanding that a reference has been made to the High Court, the duty shall be payable in accordance with the order of the Appellate Tribunal:
Provided that, the amount of duty is reduced as a result of the judgment in the reference by [such officer as authorized by the Collector or] the High Court, and any amount of duty is found refundable, the High Court may, on application submitted by the Collector, within thirty days of the receipt of the judgment of the High Court, that he wants to prefer petition for leave to appeal to the Supreme Court, make an order authorizing the Collector to postpone the refund until the disposal of the appeal by the Supreme Court.
(7) Where recovery of duty has been stayed by the High Court by an order, such order shall cease to have effect on the expiration of a period of six months following the day on which it is made unless the reference is decided, or such order is withdrawn by the High Court earlier.
(8) Section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to an application made to the High Court under sub-section (1).
(9) An application under sub-section (1) by a person other than [such officer as authorized by the Collector] the Collector shall be accompanied by a fee of one hundred rupees.]
[(10) Notwithstanding anything in this Act where any reference or appeal was preferred with the approval of Collector by the officer below the rank of Collector, and the reference or appeal is pending before appellate forum or the Court, such reference or appeal shall be deemed to have been preferred and shall be deemed always to have been so preferred by the Collector.]
Court Decision
Mode
for determing value of imported goods prior to 1st January, 2000 in terms of S.
25 of Customs Act, 1969 as it existed prior to amendment--Prior to amendment in
S. 25, Customs Act 1969, value of imported goods was to be taken as normal
value--Department in first instance had accepted bill of entry and import
invoices submitted by importer, accepted version of importer that goods
imported were non-genuine parts, charged them to custom duty and other taken
and released those consignments--Pre-supposition of department before making
out case of contravention was, that normal price of goods in question, was that
which was given in price list issued by original companies of
manufacturing--Such pre-supposition could only be taken if department would
have scrutinized examined and determined classification of goods in first
instance which exercise was not carried out by it--No case of contravention was
thus proved against appellant and provision, of S. 32, Customs Act 1969 were
misapplied against them--Appeal against order of customs, central Excise and
Sales Tax Appellate Tribunal was accepted while order of Member Customs,
Central Board of Revenue was restored. PLJ 2004
Goods
in question, having been removed from public warehouse respondent’s were liable
to pay penalty both under Sections 111 & 156 (1) (57)--Custom Authorities
would determine penal liability (amount) strictly in terms of S. 156 (57) which
envisages penalty equal to five time the duty chargeable on goods so
deficient--Relevant data of custom duty would be the date of detection of
removal of goods from the bonded warehouse as the date of ex-bonding. PLJ 2004
196-H. Exclusion of time taken for copy.- In computing the period of limitation specified for an appeal or application under this Chapter, the day on which the order complained of was served, and if the party preferring the appeal or making the application was not furnished with a copy of the order when the notice of the order was served upon him, the time requisite for obtaining a copy of such order, shall be excluded.
196-I. Transfer of certain pending proceedings.- (1) Every appeal which is pending before the Board under section 193 as it stood immediately before the appointed day and any matter arising out of or connected with such proceedings shall stand transferred on the appointed day to the Appellate Tribunal and the Appellate Tribunal may proceed with such appeal or matter from the stage at which it then was or may re-hear the same, as it may deem fit.
(2) Every proceeding which is pending immediately before the appointed day before the Board or the Collector of Customs under section 195 as it stood immediately before that day, and any matter arising out of or connected with such proceedings and which is so pending shall continue to be dealt with by the Board or the Collector of Customs, as the case may be, as if the said section had not been substituted.
(3) Every proceeding pending before the Federal Government under section 196 as it stood immediately before the appointed day and any matter arising out of or connected with such proceedings which is so pending shall stand transferred to the Appellate Tribunal and Appellate Tribunal may proceed with such proceedings or matter from the stage at which it then was or may re-hear the same, as it may deem fit, as if such proceedings or matter were an appeal filed before it:
Provided that if any such proceeding or matter relates to an order where-
(a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 181; or
(b) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or
(c) the amount of fine or penalty determined by such order;
does not exceed ten thousand rupees, such proceeding or matter shall continue to be dealt with by the Federal Government as if the said section 196 had not been substituted:
Provided further that the applicant or the other party may make a demand to the Appellate Tribunal that, before proceeding further with that proceeding or matter; he may be re-heard.
196-J. Definitions.- In this Chapter;
(a) “Appointed day” means the date of the coming into force of the Finance Act,1989;
(b) “High Court” means in relation to any province, the High Court for the Province;
(c) “Chairman” means the Chairman of the Appellate Tribunal.
CHAPTER XX
MISCELLANEOUS
197. Customs control over conveyances and goods.- The appropriate officer shall, for the purposes of this Act, have control over all conveyances and goods in a customs-area.
198. Power to open packages and examine, weigh or measure goods.- The appropriate officer may open any package or container and examine, weigh or measure any goods brought to the customs-station for importation or exportation and may for that purpose unload any such goods from the conveyance on which they have been imported or are to be exported :
Privided that the Collector may, for reasons to be recorded in writing, defer the examination of goods or class of goods belonging to a particular importer or class of importers, exporters or class of exporters and cause it to be performed at a designated place he deemds fit and proper.
199. Power to take samples of goods.- (1) The appropriate officer may, on the entry or clearance of any goods or at any time while such goods are being passed through the customs-area, take samples of such goods in the presence of the owner thereof or his agent or where the Customs Computerized System is operational in the presence of the custodian of the goods, for examination or testing or for ascertaining value thereof or for any other necessary purpose.
(2) After the purpose for which a sample was taken is carried out, such sample shall, if practicable, be restored to the owner, but if the owner fails to take delivery of the sample within one month of the date on which he is asked in writing to take its delivery, it may be disposed of in such manner as the Collector of Customs may direct.
(3) In the case of goods which consist of drugs or articles intended for consumption as food, and in respect of which the taking of samples for the purposes of this sub-section may have been authorised by a general or special order of the Provincial Government, the appropriate officer may also in like circumstances take samples thereof for submission to, and examination by, such officer of Government or of a local authority as may be specified in such order.
200. Owner to make all arrangements and bear all expenses.- Any opening, un-packing, weighing, measuring, repacking, bulking, sorting, lotting, marking, numbering, loading, unloading, carrying, or landing of goods or their containers for the purposes of, or incidental to, the examination by an officer of customs, removal or warehousing thereof shall be done, and any facilities or assistance required for any such examination shall be provided, by or at the expense of the owner of goods:
Provided that at customs-stations with the operational Customs Computerized System all the above functions shall be performed by the custodian of the cargo and the importer shall bear all expenses.
201. Procedure for sale of goods and application of sale proceeds.- (1) Where any goods, other than confiscated goods, are to be sold under any provision of this Act, they shall be sold after due notice to the owner [or his agent or custodian of the goods] by public auction or by tender or by private offer or, with the consent of the owner [or his agent or custodian of the goods] in writing, in any other manner.
(2) The sale proceeds shall be applied to the following purposes in their respective order, namely:-
(a) first to pay the expenses of the sale;
(b) then to pay the freight or other charges, if any, payable in respect of the goods, if notice of such charges has been given to the person holding the goods in custody;
(a) then to pay the customs-duty, other taxes and dues payable to the Federal Government in respect of such goods;
(d) then to pay the charges due to the person holding such goods in custody.
(3) The balance, if any, shall be paid to the owner of the goods, provided he applies for it within six months of the sale of the goods or shows sufficient cause for not doing so.
Court Decisions
It
was the duty of Custom Officers to take absolute care in matter of disposal of
currency in terms of S. 169 read with S. 201--As they failed to do so without
any just cause, they were recommended to be proceeded against under E & D
Rules. PLJ 2002
Selling of confiscated foreign currency by authorities--
, Under CGO 5, Custom authorities are required to deposit said foreign currency
with State Bank--No such action was taken so sale of currency is violative of
CGO 5--Under S. 169(4), sale of currency had to be made according to provisions
of S. 201 which require service of mandatory notice before sale--Currency was
sold in violation of provisions of S. 201--Held that : Custom authorities are
bound to hand over said amount of currency to petitioner. PLJ 2002
202. Recovery of Government dues.- (1) When, under this Act or under any other law for the time being in force, which provides for any tax, duty or other levy being collected in the same manner as customs-duties are collected, a penalty is adjudged against, or notice or demand is served upon, any person calling for the payment of any amount unpaid which may be payable by way of penalty or by way of duty, tax or other levy or under any bond, guarantee or other instrument executed under this Act or such other law or the rules made there under, the appropriate officer-
(a) may deduct or require any other officer of Customs, Federal Excise and Sales Tax to deduct such amount from any money owing to such person which may be under the control of the Customs, Federal Excise or Sales Tax authorities; or
(b) if it cannot be so recovered, may recover, or may require any other officer of Customs, Federal Excise or Sales Tax to recover, such amount by detaining and selling any goods belonging to such person which are under the control of the Customs, Federal Excise or Sales Tax authorities.
(2) If the amount cannot be recovered from such person in the manner provided in sub-section (1), the appropriate officer may serve upon the defaulter a notice in the prescribed form requiring him to pay the amount specified in the notice within such time as may be so specified.
(3) If the amount referred to in the notice under sub-section (2) is not paid within the time specified therein or within the further time, if any, allowed by the appropriate officer, the appropriate officer may proceed to recover from the defaulter the said amount by one or more the following modes, namely:-
(a) attachment and sale of any movable or immovable property of the defaulter; and
(b) may recover, or may require any other officer of Customs, Federal Excise or Sales Tax to recover, if it cannot be so re-covered, such amount by detaining and selling an goods belonging to such person which are under the control of the Customs, Federal Excise or Sales Tax authorities; or
(a) may recover such amount by attachment and sale of any movable and immovable property of the guarantor, person, company, bank or financial institution, where a guarantor or any other person, company, bank or financial institution fails to make payment under such guarantee, bond or instrument; or
(d) arrest of the defaulter and his detention in the prison for a period not exceeding fifteen days:
Provided that this mode shall not be applied unless the period of limitation prescribed for filing appeal has expired, or an appeal is pending.
(3A) A warrant of arrest issued against a defaulter in sub-section (3)(d) shall not be executed if the arrears due from him are paid or the defaulter furnished security to the satisfaction of appropriate officer.
(3B) Any defaulter who under sub-section (3) is being kept under detention shall forthwith be set at liberty on the arrears due from him being paid.
(4) For the purposes of recovery of duty, or other levy under sub-sections(1) and (3)], the appropriate officer shall have the same powers which, under the Code of Civil Procedure, 1908 (Act V of 1908), a civil court has for the purpose of the recovery of an amount due under a decree.
(5) The Central Board of Revenue may make rules regulating the procedure for recovery of duty, tax or other levy under this section and any other matter connected with or incidental to the operation of this section.
Court Decisions
Recovery of arrears of Import duty :-- Section 202 provides that if any amount payable on account of any duty, tax etc. cannot be recovered from person liable to pay same, appropriate officer may serve upon defaulter a notice in prescribed form requiring him to pay amount within such time as specified--Under sub-section 3(a), said amount can be recovered from defaulter by attachment and sale of his movable or immovable property--Held: It cannot be said that customs authorities have not acted within their powers--Leave refused but petitioner allowed time to clear remaining dues of Customs. PLJ 1995 SC 664
Notice
for recovery of Rs, 5,35,500 by custom authority failing which coercive
measures shall be taken against petitioner--Challenge to notice in writ
petition--Held: Proviso applies only to action under clause (d) of sub-section
3 of Section 202 of Customs Act, 1969 and has no applicability to other modes
of recovery--Petition dismissed. PLJ 2000
[202A. Levy of surcharge.- Notwithstanding anything contained in this Act and without prejudice to any other action that may be taken thereunder, if any person fails to pay the arrears within the prescribed time, he shall, in addition to the arrears, be liable to pay surcharge at the rate of one and a half per cent per month, of the total amount of arrears.
Explanation.- For the purpose of calculating surcharge, the period of default shall be reckoned from the day following the due date on which the arrears were required to be paid to the day preceding the date on which the same are actually paid.
203. Wharfage or storage fees.- The Collector of Customs may from time to time fix the period after the expiration of which goods left in any custom-house, custom area, wharf or other authorised landing place or part of the custom-house premises, shall be subject to payment of fees, and the amount of such fees.
204. Issue of certificate and duplicate of customs document.- A certificate or a duplicate of any certificate, manifest, bill or other custom’s document may, on payment of a fee not exceeding one hundred rupees, be furnished, at the discretion of an officer of customs not below the rank of an Assistant Collector of Customs, to any person applying for the same, if the said officer is satisfied that no fraud has been committed or is intended to be committed by the applicant.
205. Amendment of documents.- Except in the case provided for by sections 29, 45, 53 and 88, an officer of customs not below the rank of an Assistant Collector of Customs may, in his discretion, upon payment of a fee of one hundred rupees, authorise any document , after it has been presented at the custom-house to be mended.
206. Correction of clerical errors, etc.- Clerical or arithmetical errors in any decision or order passed by the Federal Government, the Board or any officer of customs under this Act, or errors arising therein from accidental slip or omission may, at any time, be corrected by the Federal Government, the Board or such officer of customs or his successor in office, as the case may be.
207. Customs-house agents to be licensed.- No person shall act on behalf of any principal for the transaction of any business or issuance of bill of lading relating to the entrance or departure of any conveyance or the import or export of goods or baggage at any customs-station unless such person holds a licence granted in this behalf in accordance with the rules as a customs agent.
208. Person to produce authority if required.- (1) When any person licensed under section 207 applies to any officer of Customs for permission to transact any specified business with him on behalf of any principal, such officer may require the applicant to produce a written authority from the principal on whose behalf such business is to be transacted, and in default of the production of such authority refuse such permission.
(2) Where the principal chooses to transact business directly without using an agent licensed under section 207, he may do so himself or may authorize an employee or representative that may transact business generally at the customs-port, airport or land customs-station or custom-house for such principal:
Provided that the appropriate officer may refuse to recognize such an employee or representative unless such a person produces an authority in writing duly signed by the principal.
209. Liability of principal and agents.- (1) Subject to the provisions of section 207 and 208, anything which the principal is required or empowered to do under this Act may be done by any person expressly authorized by the principal for the purpose.
(2) Where this Act requires anything to be done by the principal and if any such thing is done, by an employee or representative expressly authorized by the principal under sub-section (2) of section 208, unless the contrary is proved, shall be deemed to have been done with the knowledge and consent of such principal so that in any proceedings under this Act, the principal shall be liable as if the thing had been done by himself.
(3) When any customs agent is expressly authorized by the principal to be his agent under sub-section (1) of section 208 in respect of such goods for all or any of the purposes of this Act, such agent shall, without prejudice to the liability of the principal, be deemed to be the principal of such goods for such purposes:
Provided that where any duty is not levied or is short-levied or erroneously refunded on account of any reason other than willful act, negligence or default of the agent, such duty shall not be recovered from the agent.
210. Liability of agent appointed by the person-in-charge of a conveyance.- (1) Anything which the person-in-charge of a conveyance, is required or empowered to do under this Act may, with the express or implied consent of the person-in-charge and the approval of the appropriate officer, be done by his agent.
(2) An agent appointed by the person-in-charge of a conveyance, and any person who represents himself to any officer of customs as an agent of any such person-in-charge and is accepted as such by that officer, shall be liable for the fulfillment in respect of the matter in question of all obligations imposed on such person-in-charge by or under this Act or any law for the time being in force, and to penalties (including confiscation) which may be incurred in respect of that matter.
[211. Maintenance of record. (1) All importers, exporters and claimants of duty drawback, refunds or any notified concessions, terminal operators, owners of the warehouses, customs agents and the licensed customs bonded carriers, carrying out business under this Act or any other law, directly or indirectly, relating to international trade, shall be required to maintain and keep records and correspondence concerning import and export transactions.
(2) The records required under sub-section (1) shall be kept for a period not less than three years in such form as the Board may by notification in the official gazette, specify.
(3) The provision of sub-section (1) shall not be applicable to the baggage of the passengers and crew of the conveyance and to the recipients of gifts.]
[211A. Access to the premises and records by the officers of Customs.- The appropriate officer may, at any time after giving a notice in writing, visit any business or manufacturing premises where any raw materials, components, assemblies or sub-assemblies etc., imported at a notified reduced rate of the duties and taxes are manufactured, processed or stored, and inspect the goods, stocks, documents or records, data etc., and also take stock of the goods imported, manufactured, processed or stored, and the quantity thereof.]
212. Regulation of business in gold, etc.- The Federal Government
may, by notification in the official Gazette, regulate business in, or
connected with, gold or silver or precious stones or ornaments made of gold or
silver or precious stones, within fifteen miles of the frontier or coastline of
213. Recovery of money upon certain documents.- If any person knowingly makes or brings into Pakistan, or causes or authorises or is otherwise concerned in the making or bringing into Pakistan of any invoice or paper used or intended to be used as an invoice for the purposes of customs, in which any goods are entered or charged at a price or value higher or lower than that actually paid or intended to be paid for them, or in which goods are falsely described, no sum of money shall be recoverable by such person, his representatives or assigns, for the price of such goods or any part thereof, nor shall any sum of money be recoverable upon any bill of exchange, note or other security made, given or executed for the whole or part of the price of such goods unless such bill of exchange, note or other security is in the hands of a bona fide holder for consideration without notice.
214. Remission of duty and payment of compensation to the owner in certain cases.- Where, on prosecution by the owner of any goods, an officer of customs is convicted of an offence connected with the removal of such goods from the warehouse without payment of duty, the whole of the duty on such goods shall be remitted, and, the Collector of Customs, shall, in accordance with the rules, pay to the owner due compensation for the damage caused to the owner by such offence.
215. Service of order, decision, etc.- Any order or decision passed or any summons or notice issued under this Act shall be served-
(a) by tendering the order, decision, summons or notice or sending it by registered post or the courier service or by any other mode of transmission subject to acknowledgement receipt to the person for whom it is intended or to his agent; or
(b) if the order, decision, summons or notice cannot be served in any manner provided in clause (a), by affixing it on the notice board of the custom-house; or
(c) in case of electronic orders, decisions, notices or summons, when these have been sent to the recipient from the Customs Computerized System.
216. No compensation for loss or injury except on proof of neglect or wilful act.- No owner of goods shall be entitled to claim from any officer of customs compensation for the loss of such goods or for damage done to them at any time while they remain or are lawfully detained in any custom-house, customs area, wharf or landing place under the charge of any officer of custom, unless it be proved that such loss or damage was occasioned by gross negligence or wilful act of such officer.
217. Protection of action taken under the Act.- (1) No suit, prosecution or other legal proceeding shall lie against the Federal Government or any public servant for anything which is done or intended to be done in good faith in pursuance of this Act or the rules and notwithstanding anything in any other law for the time being in force no investigation or enquiry shall be undertaken or initiated by any governmental agency against any officer or official for anything done in his official capacity under this Act, rules, instructions or directions made or issued thereunder without the prior approval of the Central Board of Revenue.
(2) No suit shall be brought in any civil court to set aside or modify any order passed, any assessment made, any tax levied, any penalty imposed or collection of any tax made under this Act.
Court Decisions
Comparative study of Order 30, Rule 1, C.P.C. which deals with suits by a partnership firm permits filing of suits by or against a partnership firm whereas Order 30, Rule 10, C.P.C. which deals with suit in name of proprietary concern specifically provides only for filing of suits against a proprietary concern in its name but does not provide for filing of a suit by a proprietary concern as it does not have any legal status/character as distinct from its proprietary--Thus, a proprietary concern can be sued in its name but it cannot sue in its own name-- PLJ 2001 Karachi 101
218. Notice of proceedings. - No proceeding in a court other than a suit shall be commenced against any officer of customs or any other person exercising any powers conferred or discharging any duties imposed by or under this Act for anything purporting to be done in pursuance of the provisions of this Act or the rules without giving to such officer or person a month’s previous notice in writing of the intended proceeding and of the cause thereof; or after the expiration of one year from the accrual of such cause:
Provided that this section shall not be deemed to apply in the case of the prosecution of an officer of customs or such other person for an offence punishable under this Act.
219. Power to make rules.- (1) The Board may, by notification in the official Gazette, make rules for carrying out the purposes of this Act , including for charging of fees for processing the customs documents and preparation of copies thereof.
(2) Without prejudice to the generality of the foregoing provision, rules may be made on matters enumerated in the Third Schedule.
(3) No rules relating to matters enumerated at items 19 and 22 of the Third Schedule shall be made without previous approval of the Federal Government in writing.
(4) All rules under this section shall, as soon as may be, be laid at the table of the National Assembly.
(5) All such rules for the time being in force shall be collected, arranged, and published at intervals not exceeding two years and shall be sold to the public at a reasonable price.
220. Omitted.
221. Savings.- (1) Notwithstanding anything contained in section 6 of the General Clauses Act, 1897 (X of 1897), anything done, or any action taken under the repealed enactments in so far as it is not inconsistent with the provisions of this Act shall, without prejudice to anything already done or any action already taken, be deemed to have been done or taken under this Act:
Provided that nothing in this Act shall be so construed as to have the effect of enhancing the punishment of an offence committed before the commencement of this Act:
Provided further that where the period of limitation for the submission of an application or the filing of an appeal or revision prescribed under any of the repealed enactments had expired or had begun to run before the commencement of this Act the provisions of those enactments shall continue to apply to such limitation.
(2) The provisions of the General Clauses Act, 1897 (X of 1897), in particulars, section 6, section 8 and section 24 thereof, shall apply to the repeal and re-enactment of the said enactments by this Act, subject to the provisions of sub-section (1).
(3) Nothing in this Act shall affect any law for the time being in force relating to the constitution and powers of the trustees of any port or other port authority.
222. Removal of difficulties.- If any difficulty arises in giving effect to the provisions of this Act, particularly in relation to the transition from the enactments repealed by this Act to the provisions of this Act, the Federal Government may, by general or special order made during the period of one year from the commencement of this Act, direct such action to be taken as it considers necessary or expedient for the purpose of removing the difficulty.
223. Officers of Customs to follow Board’s orders, etc.- All officers of customs and other persons employed in the execution of this Act shall observe and follow the orders, instructions and directions of the Board:
Provided that no such orders, instructions or directions shall be given so as to interfere with the discretion of the appropriate officer of customs in the exercise of their quasi-judicial functions.
224. Extension of time limit.- The Federal Government, the Board or the appropriate officer of customs, may, upon being approached by an aggrieved party if satisfied that the delay was beyond the control of the applicant and that by granting such extension there is a possibility of some loss or hardship to the applicant being mitigated or prevented, extend the time limit laid down in any section.
THE FIRST SCHEDULE
(See section 18)
(See Finance Ordinance, 1975)
THE SECOND SCHEDULE
(See section 18)
(See Finance Act,1975)
THE THIRD SCHEDULE
(See section 219)
1. Regulation of proceedings for the detention and confiscation of the prohibited goods imported or intended to be exported, including verification of information relating to such goods, notices to be given to the owner or other parties, security for the custody or release of such goods, examination of evidence, reimbursement by the informant of expenses and damages caused by incorrect information supplied by him.
2. Cases in which the goods or material imported with a view to subsequent exportation, or to be used in the production, manufacture, processing, repair or refitting of goods specified in the rules may be delivered without payment of the whole or part of the duty; and repayment of duty on such goods and material.
3. Valuation of the goods imported or intended to be exported, submission by the importer or exporter of information necessary for the proper valuation of the goods; and production of the relevant books and documents by him, furnishing of information by the importer relating to the sources, nature and amount of the funds or assets by which the goods were acquired or the consideration for which and the manner in which it was disposed of.
4. Determining denatured spirit, and testing and denaturing of spirit.
5. Matters pertaining to drawback; drawback in respect of used goods, the amount of duty which shall be repaid as drawback on such goods; prohibition of drawback on any specified goods or class of goods; conditions for the payment of drawback; limiting the period during which such goods must be exported; limiting the time during which drawback may be claimed.
6.
The extent to
which and the conditions subject to which drawback may be allowed on the
imported material used in the manufacture of goods in
7. Matters relating to port clearance or to departure of conveyances; grant of special pass permitting bulk to be broken; conditions relating to the grant of port clearance to the master of a vessel when the agent furnishes security for the delivery of export manifest and other documents.
8. Sealing of conveyances carrying transit goods and in other cases.
9. Matters pertaining to any business for the regulation of which a notification may be issued under section 212; the accounts and records to be maintained , and the information to be furnished, by persons engaged in such business.
10. Expenses to be charged when customs officer is specially employed to accompany the owner to the warehouse under section 93; fees to be charged for permitting the owner of any goods to deal with them as provided in section 94.
11. Matters pertaining to the manufacturing and other operations carried on in the warehouse.
12. Transshipment and prohibition and regulation and restriction of transshipment; transshipment of goods without payment of duty; powers of officers of customs in that behalf; and the fees for transshipment.
13. Export of frustrated cargo under section 138.
14.
Transport of
goods from one part of
15. Conditions and restrictions applying to the transit of goods to a foreign territory without payment of duty.
16. Goods Declaration.
17. Baggage of passengers and the crew, definition, declaration, custody, examination, assessment and clearance of such baggage, transit and transshipment of such baggage; circumstances and conditions under which such baggage or any specified class of goods included in such baggage would be exempt from duty; extent of such exemption.
18. Matters pertaining to the import or export of goods by post; examination, assessment, clearance, transit or transshipment of the goods so imported or to be exported.
19. Prevention of the taking out of Pakistan of any coastal goods the export of which is dutiable or prohibited under this Act or any other law; prevention of the substitution of imported goods or exported goods by coastal goods on board a vessel; prohibiting the conveyance of any specified class of goods generally; or to or between specified ports in a coasting vessel.
20. Powers to be exercised by an officer stationed at a factory or building under section 176.
21. Licensing of agents; the form of the licence and fee payable therefor; the authority competent to grant the licence; the period of validity of the licence; qualifications of the licensee; conditions and restrictions applying to the licence including furnishing of security; circumstances in which licence may be suspended or revoked; appeals against the suspension or revocation of the licence.
22. Matters pertaining to any business for the regulation of which a notification may be issued under section 212; the accounts and records to be maintained , and the information to be furnished, by persons engaged in such business.
22A. Registration, and regulating the conduct, of the customs-practitioners appearing before any officer of customs, the Central Board of Revenue or the Federal Government in connection with any proceedings under this Act or the rules made thereunder.
22B. The form in which the memorandum of appeals shall be made under Chapter XIX, the manner in which appeals shall be verified and matters relating to hearing of appeals, revisions and references under the said Chapter which are not provided for or not sufficiently provided for in the Act.
22. Any other matter necessary for giving effect to the provisions of this Act.
The Passenger’s Baggage (Import)
Rules, 1998
The Customs Valuation
(Determination of Value of Imported Goods) Rules, 1999
The Passenger (Non Tourists) Baggage (Import) Rules, 1996
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