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The Secretary,

Revenue Division,

Islamabad. …Respondent
Dealing Officer: …Mr. Muhammad Akbar, Advisor

FINDINGS/DECISION

Present: Mr. Muhammad Akram Nizami, Advocate for the complainant.

Dr. Muhammad Ali Malik, A.C. Customs, Multan for the respondents.

Facts of the case are that the complainant’s driver loaded 220 bags of betel nuts on his truck bearing registration No.DMR-1815 against a proper bilty. Superintendent Anti-Smuggling’s staff intercepted and seized the truck on the allegation that it was being used for transportation of smuggled goods. The complainant submitted to the authorities that the truck was not involved in removal of smuggled goods but they ignored his pleas. D.C (Adjudication) decided the case vide his Order-In-Original No.325/05 dated 12.05.05 and confiscated the vehicle illegally. At the appellate stage, complainant’s view point was appreciated and the Tribunal declared the seizure of vehicle illegal vide its judgment dated 10.04.06. The vehicle was seized on 03.06.04. However, in June 2005 it was released on payment of fine of Rs.25,000 vide O-I-O dated 12.05.05. For 12 months, the vehicle was detained and remained parked in the State Warehouse because of which it sustained mechanical defects, causing financial loss to the complainant. He lost Rs.2000/- per day due to detention of the vehicle, which amounted to Rs.730,000/- for the entire period of detention. The tyres got damaged, which cost Rs.32000/- and the mechanical repairs cost the complainant Rs.20000/-. All this, including mental tension (Rs.500,000/-) and legal expenditures (Rs.50000/-) worked out to a total loss of Rs.1312000/-. The aforesaid losses occurred due to the malafide intention of the seizing staff. The seizure of vehicle under section 157 of the Customs Act, 1969 was illegal, as held by the superior courts. The loaded goods were claimed by the owner. The Appellate Tribunal released the goods unconditionally. The fine imposed by the adjudication authority was remitted by the Tribunal. The bilty showed lawful loading and transportation of goods. The complainant visited respondents’ office for payment of the aforesaid losses but to no avail. He also submitted a written application dated 27.05.06 to the Collector for payment of the aforesaid amount but the respondents did not consider it. They may be directed to pay up losses caused to the complainant by their illegal acts. Suitable action may also be taken against the respondents. Any other relief deemed fit may also allowed.

2. In reply, the respondents, after having recounted details of the case, have submitted that on interception of the truck in question the initial inquiry disclosed that it was loaded with general merchandise as was evident from the bilty No.958 dated 30.05.04 and not betel nuts. The consignment was booked by one Hafeez from Hyderabad with ‘self’ as the consignee. However, the search of the truck resulted in recovery of 220 gunny bags of betel nuts. The driver of the vehicle stated that according to his knowledge 220 bags of Maniari (general merchandise) were loaded. The truck driver and his helper failed to produce any documentary evidence or proof regarding legal import of betel nuts into Pakistan; hence the goods were seized under section 168 of the Customs Act, 1969. At one stage, it was claimed that the goods were bought from the OIC (Confiscated Cell, CSD Pindi). The organization was contacted. They informed vide letter dated 06.10.04 that betel nuts were sold to one Mr. Qasim Khan and the authority letter was issued to him, on one-time-basis for transportation of goods sold to him from the head office of CSD Pindi to Raja Bazar and not for its subsequent transportation. The organization was not responsible for further transportation or disposal of goods after 16.02.04. Muhammad Saeed submitted that he had purchased the seized goods from one Qasim Khan who purchased the same from CSD Store. In so far as mis-declaration of goods on bilty No.958 dated 30.05.04, issued by Pindi Karvan Goods Forwarding Agency, Rawalpindi, was concerned, he admitted that bilty was issued by ‘Adda Munshi’ who intentionally mentioned thereon 220 nugs of Maniari, instead of betel nuts, to avoid interception by the Police and Excise Staff of Interior Sindh, who demanded illegal gratification. The documents produced by Muhammad Saeed had no relevancy to the consignment in question. It was routine practice to conceal the consignment under cover of truck bilties showing merchandise goods in order to avoid seizure by government agencies. The documents produced by the claimant of goods subsequently twisted the facts of the case. There was sufficient evidence to seize the goods. The adjudication authority confiscated the consignment of betel nuts out rightly but released the truck on payment of redemption fine of Rs.25000/- only. The goods were thus mis-declared as ‘Maniari’ which, in fact, were betel nuts. On appeal, the Collector (Appeals) confirmed the original judgment. The Customs staff was within their right to seize the goods in question. They were justified in all their action. The instant complaint filed by Muhammad Shakeel S/o Muhammad Akram, real elder brother and business partner of Muhammad Saeed S/o Muhammad Akram, (claimant of the seized betel nuts) is nothing but an attempt to pressurize the customs staff to achieve their own ends. The complaint being fallacies and based on conjecture may be filed.

3. During the hearing, the AR reiterated the arguments advanced in the written complaint. He stated the complainant had submitted an application dated 27.05.06 to the Collector for payment of losses but it was not replied to. The truck was seized on 03.06.04 and it was released in June 2005. The complainant had lost one year’s income and sustained other losses due to long detention of the truck and deterioration. He added that the comments filed by the respondents did not cover the points raised in the complaint. Respondents’ malafide was established when the Tribunal released the consignment.



4. The DR submitted that the goods were liable to confiscation under section 168 of the Customs Act, 1969 and were rightly seized because on the bilty the goods were mentioned as ‘Maniari’ and not ‘betel nuts’, which were concealed and were recovered from the vehicle only after search. The case was decided after hearing the complainant. Taking a lenient view, the adjudication authority released the truck on payment of a nominal redemption fine of Rs.25000/- only. The complainant did not produce the documents of import or purchase through auction at the time of making the seizure. The driver’s statement showed that goods were declared as ‘Maniari’ and not as betel nuts, which led to strong suspicion on the basis of which the case was instituted.

5. The arguments of the two sides and records of the case have been considered and examined. The respondents seized the goods and subsequently confiscated them vide O-I-O No.325/05 dated 12.05.05. The truck, according to them, was seized because on search the respondents found that instead of 200 bags of ‘Maniari’ (general merchandise) as shown on the relevant bilty, it was found to carry 200 gunny bags of betel nuts. The driver failed to produce any proof of lawful import of betel nuts into Pakistan. While the goods were confiscated out rightly on the ground that these were smuggled, the truck too was confiscated but was released by the adjudication authority on payment of redemption fine of Rs.25000/-. The Collector (Appeals) confirmed the O-I-O. However, on further appeal, the Appellate Tribunal released the goods and also remitted redemption fine of Rs.25000/- imposed on the truck. The complainant claims compensation for damages caused to the vehicle (damaged tyres, mechanical repairs etc.) and income loss sustained on account of long detention of vehicle because of which it remained out of operation. The case record shows that the respondents made out the case basically on two grounds: (i) the goods in question were mentioned as ‘Maniari’ (general merchandise) on the relevant bilty, whereas, on examination, they discovered a consignment of 200 gunny bags of betel nuts and (ii) at the time of interception the driver did not produce any documents establishing legal import of the goods in question. At the time of interception of the vehicle, the driver gave a statement that the truck was loaded with general merchandise (Maniari) and not betel nuts. On examination, however, goods were found to be betel nuts. Therefore, respondents’ contention that they had acted on suspicion and they could not be accused of making seizure with a malafide intention is not unreasonable. During the complaint proceedings, the AR submitted that it was wrong that the bilty showed ‘Maniari’. In fact, he stated, it mentioned the consignment as ‘suppari’ but the word ‘Suppari’ was tempered by the respondents so as to make it read ‘Maniari’. He promised to supply a correct copy of the original bilty to prove that the goods mentioned thereon were ‘suppari’ and not ‘Maniari’, as alleged by the respondents, but he has failed to produce the promised document in support of his contention. Considering the overall circumstances of the case, it is not possible to attribute malafides to the respondents. In so far as the alleged damage to the truck is concerned, the complainant should have got the vehicle surveyed for damages before taking delivery of the truck from the respondents for staking subsequent claim of damages under the appropriate provisions of law before a competent authority. It appears that he did not do so. Since the truck was got released by the complainant without any survey or examination, the belated claim for compensation on account of damages allegedly sustained during the period of detention is difficult to investigate. Considering the overall circumstances of the case, it is observed that no ‘maladministration’ is established. The complainant has failed to make out a convincing case for payment of compensation. The complaint is filed and the case is closed.

(Justice (R) Munir A. Sheikh)

Federal Tax Ombudsman

Dated: -2006

BEFORE THE FEDERAL TAX OMBUDSMAN

REGIONAL OFFICE

KARACHI

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