LAGUARDIA LOGISTICS (PVT.) LTD. VS FEDERATION OF PAKISTAN through Customs Collectorate Preventive, 2016 PTD-KARACHI-HIGH-COURT-SINDH 1750 (2016)

(a) Customs Act (IV of 1969)---

----S. 129----Customs General Orders No. 12/2002---Customs General Order No. 6/2010---Transit of goods across Pakistan to a foreign country---Levy of duties, taxes, etc.---Legality---Petitioner, a carrier company, sent a shipment for supply of Low Sulpher Diesel to Afghanistan for International Security Assistance Force (I.S.A.F) and North Atlantic Treaty Organization (N.A.T.O), but the same was attacked and destroyed en route to Afghanistan---Customs Authorities, issued Demand-cum-Show Cause Notices to the petitioner for non-payment of customs duties, taxes, etc. for the short delivery of said goods---Petitioner contended that in terms of the Agreement between Pakistan and Afghanistan and S. 129 of Customs Act, 1969, no customs duties, taxes, etc. were payable in respect of the supply of goods to Afghanistan---Validity---Demand-cum-Show Cause Notices for the payment of customs duties and taxes etc. had been issued on the basis of Customs General Order No. 12/2002 and Customs General Order No. 6/2010 and S. 129 of Custom Act, 1969---Supply of goods in question had already been transited out of Pakistan---Department as per Goods Declaration Form, were legally correct to take steps for recovery of the duties, taxes, etc.---Agreement between Government of Pakistan and Afghanistan relied upon by the petitioner related to trade between the governments for their nationals; whereas, the supply/transit of goods in question were for the use of I.S.A.F and N.A.T.O; said agreements were, therefore, not applicable to the present case---Petitioner had assailed the impugned Orders-in-Original passed by the Customs Authorities by way of filing appeal before Collector of Customs, which the petitioner had withdrawn therefore, said orders, having attained finality, had been accepted as correct---Last Demand Notices for payment of amount in dispute had been issued after the impugned orders had attained finality---Impugned orders, therefore, could not be assailed under Constitutional jurisdiction indirectly by way of present petition---High Court maintained impugned order---Constitutional petition was dismissed in circumstances.

Federation of Pakistan v. Jamaluddin 1996 SCMR 727 distinguished.

Afghan/Pakistan Transit Trade Agreement, 2010 (APTTA) ref.

(b) Constitution of Pakistan---

----Art. 199----Constitutional jurisdiction of High Court---Scope---Relief, which is directly sought under a statutory remedy, cannot be sought indirectly in Constitutional jurisdiction.

M. Abdul Rehman for Petitioner.

Muhammad Khalil Dogar for Respondents along with Ilyas Ahsan, Appraising Officer, Customs.

Aslam Butt, D.A.G.

ORDER

The case of the Petitioner is that the Petitioner is a Carrier Company under the Agreement with Supreme Fuels Trading FZE, at the time of Declaration of the Shipments, a Letter was issued by the said Company to the National Logistic Cell (N.L.C), thereby confirmed the Shipment Transit to be transited to the Afghanistan, for the North Atlantic Treaty Organization, International Security Assistance Force, who also issued Letters to the N.L.C., and the Custom Authorities/ Respondents and ultimately Shipments were transmitted for which, as per, Custom Goods Declaration Forms, the Shipment of the Low Sulpher Diesel were attacked and destroyed en route to the Afghanistan and the Custom Authorities/Respondents, issued Several Demand-cum-Show Cause Notices to the Petitioner for non-payment of Custom Duties, Taxes etc., chargeable for the short delivery of Low Sulpher Diesel and non-submission of Transit Permits to ISAF/NATO Forces in Afghanistan and to the Oil Section Keamari, Karachi, within the stipulated period of 30 days, and the Petitioners through their Tax Consultant replied to the such Notices. The Respondents/Custom Authorities passed the Orders-in-Original against the Petitioner and thereby ordered the Petitioner to pay the Duties and Taxes in view of the short supply/delivery of the Low Sulpher Diesel. The Petitioner impugned the same by filing Appeals before, the Collector of Customs and during pendency of the same, Notices for the recovery of Rs.6,52,79,075/- as Custom Duties and Taxes as well as for suspension of the Custom License were issued by the Respondents, and as such, the Petitioner filed this Petition. Thereafter, the Petitioner withdrew the said Appeals, which were dismissed as withdrawn vide Order dated 18.06.2012. The Respondents filed their Para wise Comments and thereby opposed the case and contentions of the Petitioner.

The contentions of the learned Counsel for the Petitioner are that the Transit from the Afghanistan is regulated in terms of an Agreement of year 1965, between the Governments of Pakistan and Afghanistan, as such, no Custom Duties, Taxes and other charges are payable in respect of the supply of transit Goods to Afghanistan, and the Custom General Order No.12/2002, amendment by way of Custom General Order No.06/2010, are also not applicable in view of Section 129 of the Custom Act, and Oil supplied/Transit Goods were destroyed during the transit on account of attack/fire caused over the same, by the terrorists and prayed for declaring that the said Orders against the Petitioner passed by the Respondents are violative of Section 129 of the Custom Act and the said Agreement between the Governments of Pakistan and Afghanistan. Learned Counsel made reliance on the case of Federation of Pakistan v. Jamaluddin, reported in 1996 SCMR 727.

Whereas contentions of the learned Counsel for Respondents are that the Low Sulpher Oils under the Transit, were for the use of I.S.A.F./N.A.T.O. Forces in the Afghanistan, which is not regulated in terms of the Afghanistan Transit Trade Agreements between the Governments of Pakistan and Afghanistan, rather a special procedure has been laid down vide Custom General Order No.12/2002, amended vide Custom General Order No. 06/2010, r/w Section 129 of the Customs Act, 1969; that Messrs Supreme Fuels Trading FZE, is a Company based in United States, who are Contractor in import and supply of Fuels for the I.S.A.F./N.A.T.O. Forces, based in Afghanistan and not for Afghanistan Nationals, as there were shortfalls in the supply/delivery of low Sulpher Oil under Transit, which were not as per the Custom Goods Declarations and so the Demand-cum-Show Cause Notices were issued, orders-in-original passed, against which the Petitioner filed Appeals, which were dismissed as withdrawn after filing of the instant Petition, which is, as such, not maintainable and prayed for the dismissal of the same.

Heard the arguments of the learned Counsel for the parties, gone through the records available and referred to in the matter.

Since there were shortfalls in the supply/delivery of the Low Sulpher Diesel, which were not in consonance with the Custom Goods Declarations and, as such, Demand-cum-Show Cause Notices for the payment of Customs Duties and Taxes etc. were issued on the basis of said Custom General Orders, and Section 129 of the Custom Act, and even otherwise the supply of Goods were transited out of Pakistan, as per Goods Declarations, the Respondents were legally correct to take steps for the recovery of Duties and Taxes as per the provisions of the Custom Laws, and the Orders.

Ultimately, Orders in Original passed, against which the Petitioner filed Statutory Appeals, which were dismissed as withdrawn after filing of instant Petition as the Respondents demanded sum of Rs.6,52,79,075/- as Duties and Taxes etc, by way of Demand-cum-Show Cause Notices on the basis of which the Petitioner has filed the said appeals. In fact, the, main Orders of the Respondents/Custom Authorities, which were impugned by way of Statutory Appeals have been withdrawn, the same attained finality and on the basis of which last Demand Notices for the payment of said amount were issued, so the Petitioner filed this Petition praying for declaring such Orders as violative of law, ultra vires and void which in constitutional jurisdiction would not be sought, where the Statutory Appeals against the same have already been withdrawn by the Petitioner and original orders attained finality, which thereby has been accepted as correct, then indirectly by way of this Petition, such Orders cannot be assailed. In the words we are of the mind for the administration of justice that relief directly sought under statutory remedy, cannot be sought indirectly and that too in Constitutional Jurisdiction after withdrawing from the statutory remedy.

Even otherwise, the said Agreement between the Governments of Pakistan and Afghanistan relied upon by the Petitioner relates to a Trade between the said Governments for their Nationals, whereas the supply/transit of the Goods in the matter, were for the use of I.S.A.F./ N.A.T.O. Forces, based in the Afghanistan, so the said Agreement would not be applicable to the case of the Petitioner, who has also referred to and relied upon the Afghan/Pakistan Transit Trade Agreement, 2010 (APTTA), which is also between the two Governments in respect of general trade for their people, and even otherwise as per the Article 28 of the said Agreement, which is reproduced herein below:-

"When it is established to the satisfaction of the Customs Authorities that goods specified in the Transit documents/GD have been destroyed or have been irretrievably lost by accident or other unforeseen events en route or that they are short by reason of their nature, payment of duties and taxes normally due, shall be waived."

And as per the same, the payment of Custom Duties and Taxes normally due shall be waived by the Custom Authorities, for which the concerned Authority has to be approached, which shows that Duties and Taxes are leviable and even otherwise decision of the Supreme Court in the case of Federation of Pakistan v. Jamaluddin (supra) is not applicable to the case in hand as the same relates to detention or confiscation of the imported consignments by the Custom Authorities, in respect of the Trade under Afghanistan Transit Trade Agreement, 1965, for the Nationals of the Governments of Pakistan and Afghanistan.

In view of the above, this Petition is incompetent and devoid of any merits, which is dismissed accordingly along with listed Applications.

SL/L-1/SindhPetition dismissed.