Notification through which the exemption was granted remained operative so long the same existed and in case the exemption was withdrawn,
the notification of withdrawal of exemption being prospective in its operation would not operate retrospectively and the exemption already made through earlier notification would remain available till the time the same was not taken away.
In absence of specific mention of regulatory duty in exemption notification, the customs duty would not include the regulatory duty leviable under S.18(2) of Customs Act, 1969 the Exemption from regulatory duty could not be claimed in general under a notification giving such exemption beyond the financial year, during which the same was imposed.

Notice could have been issued on or before 6-3-1995 but the same was issued on 10-6-1995. Where the show-cause notice could have been issued
within six months from the date of payment of duty/charges and the same was issued beyond the period of six months as prescribed under S.32(3) of Customs Act, 1969, the order passed by the Tribunal was set aside.

The impugned order shows that no reasons have been given about the suspension. Admittedly no proceedings for cancellation in terms of Section 13(3)
of Customs Act were pending against the petitioner and as such suspension of license could not be ordered. Further, if this action was taken against the petitioner without issuing any show-cause-notice, at least the collector customs was bound to give reasons for the said suspension. No doubt the license could be withdrawn or cancelled in case of any violation of the terms of the license but in this case no violation has been alleged nor any proceedings for cancellation were pending as on 3.12.2010 when the suspension order of license was passed.

As the appeal against order-in-original is pending disposal before a competent forum and as such this Court cannot interfere in the appellate jurisdiction of respondent in its constitutional jurisdiction to the extent of pending appeal against order-in-original. This petition is only restricted to the extent of suspension of license of private bond and imposition of bank guarantee for transfer of goods from bond to bond.

As there is no appeal provided in the statute against order passed under Section 13(3)(4) of Customs Act 1969 and as such this petition is maintainable and this Court has the power to set aside or affirm the order impugned. The upshot of the above said discussion is that the impugned order dated 3.12.2010 and 19.3.2011 are hereby set aside and are declared without lawful authority.

The impugned order shows that no reasons have been given about the suspension. Admittedly no proceedings for cancellation in terms of Section 13(3)
of Customs Act were pending against the petitioner and as such suspension of license could not be ordered. Further, if this action was taken against the petitioner without issuing any show-cause-notice, at least the collector customs was bound to give reasons for the said suspension. No doubt the license could be withdrawn or cancelled in case of any violation of the terms of the license but in this case no violation has been alleged nor any proceedings for cancellation were pending as on 3.12.2010 when the suspension order of license was passed.

As the appeal against order-in-original is pending disposal before a competent forum and as such this Court cannot interfere in the appellate jurisdiction of respondent in its constitutional jurisdiction to the extent of pending appeal against order-in-original. This petition is only restricted to the extent of suspension of license of private bond and imposition of bank guarantee for transfer of goods from bond to bond.

As there is no appeal provided in the statute against order passed under Section 13(3)(4) of Customs Act 1969 and as such this petition is maintainable and this Court has the power to set aside or affirm the order impugned. The upshot of the above said discussion is that the impugned order dated 3.12.2010 and 19.3.2011 are hereby set aside and are declared without lawful authority.

At the time of appeal in question Single Member of Appellate Tribunal was authorized to hear matters involving amounts up to Rs. 100,000
but this was subsequently amended to Rs.500,000---Amendment could not be given retrospective effect and a jurisdictional defect could not be rectified on the same basis---Valuation of smuggled goods collectively exceeded Rs.500,000---Single Member of Appellate Tribunal did not have the jurisdiction to adjudicate upon the matter at the relevant time---Appellate Tribunal had set-aside the original order but the appellate order still occupied the field--- Impugned order of Appellate Tribunal was set-aside and case was remanded to the Tribunal for decision in accordance with the law.

FINE IN LIEU OF CONFISCATION: Section 181 of the Customs Act, 1969 empowered the Adjudicating Officer to give the owner of the goods an option to pay fine in lieu of confiscation of goods,
such fine as he thought fit, and the proviso to said section provided that Federal Board of Revenue may by an order fix quantum of fine in lieu of confiscation on any goods or class of goods imported in violation of S.15 of the Customs Act, 1969 or of a notification under S.16 of the Customs Act, 1969 or any other law for the time being in force---Quantum of fine, in the present case, was in accordance with S.R.O. 574(I)/2005 dated 6-6-2005 and in the light of the same, there was no merit in present Reference application of the Collector---Reference application was dismissed.

Neither such S.R.O. could curtail powers of Adjudicating Authority nor would he be bound by instructions/ directions/orders contained therein while exercising a quasi-judicial function.
Adjudicating Authority in his discretion could impose fine in lieu of confiscation of vehicle.

Neither such S.R.O. could curtail powers of Adjudicating Authority nor would he be bound by instructions/ directions/orders contained therein while exercising a quasi-judicial function. The
Adjudicating Authority in his discretion could impose fine in lieu of confiscation of vehicle---Confiscated vehicle for being property of Government used to be auctioned on nominal price on fake names to relatives and kins of auction mafia within institution. the release of such vehicle on payment of fine and additional duty and taxes would be more beneficial to State instead of its confiscation and auction in such clandestine manner.High Court dismissed reference application in circumstances.

Provisions of S.32 of Customs Act, 1969, are analogous to the provisions of S.65 of Income Tax Ordinance, 1979. Provisions of the statues empower the Assessing Officer to reopen the assessment finalized earlier on receiving a definite information. Customs Authorities, under S.32 of Customs Act, 1969, has accepted
the facts disclosed and the version given by the importer with regard to the imported goods and had subjected the importer to duty under a particular provisions of law. Such notice could not be issued unless the same was definitely established that the short levy was on account of any act or omission of the importer as contemplated in S.32(1)(a)(b) of Customs Act, 1969.

WTO Agreements:-
This court vide its judgment dated 28.02.2011 in the case of Sadia Jabbar V/s Federation of Pakistan & others in CP No 2673/2009 while dilating upon the consequences of non-compliance of the WTO agreements has observed that the Parliament is presumed to know and keep in mind the countrys international obligations, and the consequences that could flow from any non-compliance with such obligations; and that the courts should, to the maximum extent possible, avoid an interpretation that conflicts with the WTO agreement concerned, and thereby has the potential of exposing Pakistan to the possibility of retaliatory measures being adopted by other member countries under the WTO system.
11. In so far as the question regarding status of the demand raised in terms of section 32(3) of the Act on behalf of the applicant is concerned, it would have been enough to say that the same does not arise out of the order of the tribunal and hence cannot be answered by this court under its advisory jurisdiction in terms of section 196 of the Act. However, we have noticed that at the time of passing of the second Order in Original dated 12.05.2003, after remand of the case, the applicant/department had itself foregone its right to any recovery on the basis of the demand made in terms of section 32(3) of the Act. This demand was enforced in the first Order in Original dated 19.08.2002, which was set aside by the Collector Appeals vide its Order dated 28.02.2003. After remand of the case, the adjudicating authority did not give any findings on the merits of such demand and only rejected the refund claim of the respondent against which the respondent had filed an appeal. Therefore, the applicant is not justified in raising the same at this stage of the case. The judgment of the Honorable Supreme Court in the case of Flying Board & Paper Products (Supra), relied upon by the learned counsel for the applicant is not applicable to the facts of the instant case as it pertains to a period prior to 01.01.2000 when the unamended provision of section 25 of the Act was applicable, which was primarily based on the concept of notional value of goods, commonly known as Brussels Definition of Value.

WTO Agreements:-
This court vide its judgment dated 28.02.2011 in the case of Sadia Jabbar V/s Federation of Pakistan & others in CP No 2673/2009 while dilating upon the consequences of non-compliance of the WTO agreements has observed that the Parliament is presumed to know and keep in mind the countrys international obligations, and the consequences that could flow from any non-compliance with such obligations; and that the courts should, to the maximum extent possible, avoid an interpretation that conflicts with the WTO agreement concerned, and thereby has the potential of exposing Pakistan to the possibility of retaliatory measures being adopted by other member countries under the WTO system.
11. In so far as the question regarding status of the demand raised in terms of section 32(3) of the Act on behalf of the applicant is concerned, it would have been enough to say that the same does not arise out of the order of the tribunal and hence cannot be answered by this court under its advisory jurisdiction in terms of section 196 of the Act. However, we have noticed that at the time of passing of the second Order in Original dated 12.05.2003, after remand of the case, the applicant/department had itself foregone its right to any recovery on the basis of the demand made in terms of section 32(3) of the Act. This demand was enforced in the first Order in Original dated 19.08.2002, which was set aside by the Collector Appeals vide its Order dated 28.02.2003. After remand of the case, the adjudicating authority did not give any findings on the merits of such demand and only rejected the refund claim of the respondent against which the respondent had filed an appeal. Therefore, the applicant is not justified in raising the same at this stage of the case. The judgment of the Honorable Supreme Court in the case of Flying Board & Paper Products (Supra), relied upon by the learned counsel for the applicant is not applicable to the facts of the instant case as it pertains to a period prior to 01.01.2000 when the unamended provision of section 25 of the Act was applicable, which was primarily based on the concept of notional value of goods, commonly known as Brussels Definition of Value.

1. Whether the tribunal is justified in holding that customs authorities has [have] properly interpreted and applied the provisions of section 32 of the Customs Act, 1969?
2. Whether the Tribunal was justified in upholding that imposition of penalty and redemption fine of 35% on the consignment of the applicant was correct under S.R.O 499(I)/2009 in the absence of mensrea and motive to evade tax and where such declaration would carry no fiscal consequences?
3. Whether the Tribunal was justified in upholding the assessment of customs department as per serial No.15 of the Valuation Ruling No.230 dated 02.03.2012 by assessing the part of consignment i.e. Children shoes/Joggers up to 12 years @ US$0.8/pair instead of serial No.1 or serial No.4 of the Valuation Ruling?
4. Whether the Tribunal was justified in holding that in view of same PCT Headings of consignment i.e. shoes of description is same and classifiable under same PCT Code 6404.1900 and there is no other PCT heading which is attracted under the case, can be termed as mis-declaration of description of goods?
Misdeclaration:- Insofar as the case of Collector of Customs v/s. Shaikh Shakeel Ahmed (supra) relied upon by the learned counsel for the applicant is concerned, we have noticed that the same was in respect of altogether a different proposition as in that case the Court had held that since the department itself had been classifying the consignment imported by the petitioner under a specific H.S Code, therefore, the declaration made subsequently by the petitioner was on the basis of previous classification and cannot be termed to have been made in bad faith or with the intention of evading duties. It can be seen that the ratio of this judgment is not applicable on the case of the applicant, which is entirely based on different footing.

Consequently, all the four questions as proposed by the applicant are answered in the affirmative against the applicant and in favour of the respondents. The instant reference application is dismissed and the Order of the Tribunal is upheld and hereby maintained. The Registrar is directed to send copy of this order under the seal of this Court to the Tribunal for information.

1. Whether the tribunal is justified in holding that customs authorities has [have] properly interpreted and applied the provisions of section 32 of the Customs Act, 1969?
2. Whether the Tribunal was justified in upholding that imposition of penalty and redemption fine of 35% on the consignment of the applicant was correct under S.R.O 499(I)/2009 in the absence of mensrea and motive to evade tax and where such declaration would carry no fiscal consequences?
3. Whether the Tribunal was justified in upholding the assessment of customs department as per serial No.15 of the Valuation Ruling No.230 dated 02.03.2012 by assessing the part of consignment i.e. Children shoes/Joggers up to 12 years @ US$0.8/pair instead of serial No.1 or serial No.4 of the Valuation Ruling? 4. Whether the Tribunal was justified in holding that in view of same PCT Headings of consignment i.e. shoes of description is same and classifiable under same PCT Code 6404.1900 and there is no other PCT heading which is attracted under the case, can be termed as mis-declaration of description of goods? Misdeclaration:- Insofar as the case of Collector of Customs v/s. Shaikh Shakeel Ahmed (supra) relied upon by the learned counsel for the applicant is concerned, we have noticed that the same was in respect of altogether a different proposition as in that case the Court had held that since the department itself had been classifying the consignment imported by the petitioner under a specific H.S Code, therefore, the declaration made subsequently by the petitioner was on the basis of previous classification and cannot be termed to have been made in bad faith or with the intention of evading duties. It can be seen that the ratio of this judgment is not applicable on the case of the applicant, which is entirely based on different footing. Consequently, all the four questions as proposed by the applicant are answered in the affirmative against the applicant and in favour of the respondents. The instant reference application is dismissed and the Order of the Tribunal is upheld and hereby maintained. The Registrar is directed to send copy of this order under the seal of this Court to the Tribunal for information.

REFUND:- From the perusal of the above provision, it is clear that no refund of any customs duties or charges claimed to have been over paid through inadvertence, error or misconstruction shall be allowed unless such claim is made within one year (previously it was six months) of the date of payment of such duty and charges.
It can be seen from the above, that the provisions of section 33 of the Act are only applicable when duty and charges are paid through inadvertence, error or misconstruction, whereas in the instant matter no inadvertence, error or misconstruction is involved as the respondent had claimed exemption from duty and taxes at the very outset at the time of filing of GD, which was denied by the applicant. Thereafter, owing to the persistent efforts on the part of the respondent, certain refund claims were settled in their favor, which also included 3 time barred claims. Therefore, under no circumstances, the present case can be governed by the provisions of section 33 of the Act, as neither there is any inadvertence, nor error or misconstruction on the part of the respondent in claiming the refunds from the applicant. The respondent had claimed the exemption under the SRO from day one which was denied by the applicant, but subsequently it was granted by sanctioning 12 claims including 3 time barred claims vide its letter dated 12.11.1998. 
8.     In the above judgment, the Honorable Supreme Court was pleased to hold that the claim of the appellant (Pfizer) could not have been declined on the ground of limitation provided under section 33 of the Act and it was further held that if the appellant had fulfilled the requisite conditions of the SRO, the denial of refund of the amount involved would be violative of Article 24 (1) of the Constitution, 1973, which lays down that no person shall be deprived of his property save in accordance with law.
Questions:-
A.        Whether on the facts and circumstances of the case, the learned Tribunal has misinterpreted the conditionally exempted Notification No. SRO 462(I)/1995 dated 4.6.1995 for extending the benefit at belated state to grant the refund?
B.        Whether on the facts and circumstances of the case, the learned Tribunal erred in law by failing to appreciate the overriding effect of the statutory provisions of Customs Act, 1969 for the purposes of levying custom duty and taxes on import of goods particularly referring to Section 18 with 1st schedule to the Customs Act, 1969?
C.        Whether on facts and circumstances of the case, the learned Tribunal erred in law to grant exemption at belated stage and such exemption was not claimed under the statutory provisions, which grant exemption only the plant and machinery not manufactured locally?
D.        Whether on the facts and circumstances of the case, the learned Tribunal erred in law that out of charge goods can be granted exemption at belated stage to not applied the statutory provision of section 29 of the Customs Act, 1969?
E.         Whether on the facts and circumstances of the case, the learned Tribunal granted refund which was claimed after 4 years after release of the goods and hopelessly barred under provision of the special statute and also fall under latches?
Answer:-
9.The judgment in the case of M/s Pakistan Telecommunication Corporation (Supra) relied upon by the learned counsel for the applicant is not applicable and relevant in the instant matter, as in that case firstly the contention of the petitioner was that it had inadvertently paid higher duties than what was actually due from him and this Court after examining the facts of the case came to the conclusion that the duty and taxes were recovered from the petitioner on the basis of the declaration made by it, where after the goods were cleared and consumed. It was further held that the claim of refund in that respect could not have been examined by the department, except by re-examination of goods, which were never presented, and could not have been presented, as such the department had rightly rejected the claim. It was further held that it required amendment of description and value of the goods on the GD which is not permissible in terms of section 29 of the Act after the goods have been removed from the Customs Area, therefore the refund could not have been granted and the petition was dismissed.
10.         The proposed questions A & C are answered in the negative, in favor of the respondent and against the applicant. Similarly question E is also answered in the negative against the applicant and in favor of the respondent. The other proposed questions B & D are not required to be answered, as firstly they do not arise out of the order of the Tribunal and moreover for the reasons as discussed above are not relevant for deciding the controversy in hand.

REFUND:- From the perusal of the above provision, it is clear that no refund of any customs duties or charges claimed to have been over paid through inadvertence, error or misconstruction shall be allowed unless such claim is made within one year (previously it was six months) of the date of payment of such duty and charges.
It can be seen from the above, that the provisions of section 33 of the Act are only applicable when duty and charges are paid through inadvertence, error or misconstruction, whereas in the instant matter no inadvertence, error or misconstruction is involved as the respondent had claimed exemption from duty and taxes at the very outset at the time of filing of GD, which was denied by the applicant. Thereafter, owing to the persistent efforts on the part of the respondent, certain refund claims were settled in their favor, which also included 3 time barred claims. Therefore, under no circumstances, the present case can be governed by the provisions of section 33 of the Act, as neither there is any inadvertence, nor error or misconstruction on the part of the respondent in claiming the refunds from the applicant. The respondent had claimed the exemption under the SRO from day one which was denied by the applicant, but subsequently it was granted by sanctioning 12 claims including 3 time barred claims vide its letter dated 12.11.1998.
8. In the above judgment, the Honorable Supreme Court was pleased to hold that the claim of the appellant (Pfizer) could not have been declined on the ground of limitation provided under section 33 of the Act and it was further held that if the appellant had fulfilled the requisite conditions of the SRO, the denial of refund of the amount involved would be violative of Article 24 (1) of the Constitution, 1973, which lays down that no person shall be deprived of his property save in accordance with law.
Questions:-
A. Whether on the facts and circumstances of the case, the learned Tribunal has misinterpreted the conditionally exempted Notification No. SRO 462(I)/1995 dated 4.6.1995 for extending the benefit at belated state to grant the refund?
B. Whether on the facts and circumstances of the case, the learned Tribunal erred in law by failing to appreciate the overriding effect of the statutory provisions of Customs Act, 1969 for the purposes of levying custom duty and taxes on import of goods particularly referring to Section 18 with 1st schedule to the Customs Act, 1969?
C. Whether on facts and circumstances of the case, the learned Tribunal erred in law to grant exemption at belated stage and such exemption was not claimed under the statutory provisions, which grant exemption only the plant and machinery not manufactured locally?
D. Whether on the facts and circumstances of the case, the learned Tribunal erred in law that out of charge goods can be granted exemption at belated stage to not applied the statutory provision of section 29 of the Customs Act, 1969?
E. Whether on the facts and circumstances of the case, the learned Tribunal granted refund which was claimed after 4 years after release of the goods and hopelessly barred under provision of the special statute and also fall under latches?
Answer:-
9.The judgment in the case of M/s Pakistan Telecommunication Corporation (Supra) relied upon by the learned counsel for the applicant is not applicable and relevant in the instant matter, as in that case firstly the contention of the petitioner was that it had inadvertently paid higher duties than what was actually due from him and this Court after examining the facts of the case came to the conclusion that the duty and taxes were recovered from the petitioner on the basis of the declaration made by it, where after the goods were cleared and consumed. It was further held that the claim of refund in that respect could not have been examined by the department, except by re-examination of goods, which were never presented, and could not have been presented, as such the department had rightly rejected the claim. It was further held that it required amendment of description and value of the goods on the GD which is not permissible in terms of section 29 of the Act after the goods have been removed from the Customs Area, therefore the refund could not have been granted and the petition was dismissed.
10. The proposed questions A & C are answered in the negative, in favor of the respondent and against the applicant. Similarly question E is also answered in the negative against the applicant and in favor of the respondent. The other proposed questions B & D are not required to be answered, as firstly they do not arise out of the order of the Tribunal and moreover for the reasons as discussed above are not relevant for deciding the controversy in hand.

Re-Export Permission:- In the instant case it has come on record that the consignment was not imported in accordance with law, whereas the applicants have attempted to clear the banned goods by seeking the benefit of SRO 565(I)/2006, which was not attracted in the facts and circumstances of this case or duty and taxes were evaded by the applicants and lesser amount of duty and taxes were paid, which resulted in loss of revenue to the exchequer.
We have further noted that permission as visualized in terms of para 8(i) of the Export Policy Order 2009, is also restrictive only for the purposes of repairs, replacement or refilling of cylinders and ISO tanks, further subject to submission of indemnity bond  to customs authorities undertaking that the goods being exported shall be re-imported after repairs, replacement or refilling. In the instant case it appears that neither such request was made in terms of para 8(i) of the Export Policy Order 2009 nor under the facts and circumstances of this case the goods of the applicants are covered under such provision. Learned counsel for the applicants was asked to refer to any provision of law or to produce any case law to support his contention that even after seizure of goods and initiation of adjudication proceedings against an importer the permission of re-export of goods can be awarded, but the learned counsel could not refer to any such provision of law nor could place any case law in this regard. However, he has submitted that the customs authorities are bound to follow the provisions of Import and Export Policy as well as the notification and instructions issued in this regard. We have noted that no relaxation has been issued by the Ministry of Commerce in terms of the Import Policy Order 2009-2010 nor any instructions have been issued whereby the confiscated goods which have been imported in violation of Import Policy Order are permitted to be re-exported once the adjudication proceedings have been initiated.

Re-Export Permission:- In the instant case it has come on record that the consignment was not imported in accordance with law, whereas the applicants have attempted to clear the banned goods by seeking the benefit of SRO 565(I)/2006, which was not attracted in the facts and circumstances of this case or duty and taxes were evaded by the applicants and lesser amount of duty and taxes were paid, which resulted in loss of revenue to the exchequer.
We have further noted that permission as visualized in terms of para 8(i) of the Export Policy Order 2009, is also restrictive only for the purposes of repairs, replacement or refilling of cylinders and ISO tanks, further subject to submission of indemnity bond  to customs authorities undertaking that the goods being exported shall be re-imported after repairs, replacement or refilling. In the instant case it appears that neither such request was made in terms of para 8(i) of the Export Policy Order 2009 nor under the facts and circumstances of this case the goods of the applicants are covered under such provision. Learned counsel for the applicants was asked to refer to any provision of law or to produce any case law to support his contention that even after seizure of goods and initiation of adjudication proceedings against an importer the permission of re-export of goods can be awarded, but the learned counsel could not refer to any such provision of law nor could place any case law in this regard. However, he has submitted that the customs authorities are bound to follow the provisions of Import and Export Policy as well as the notification and instructions issued in this regard. We have noted that no relaxation has been issued by the Ministry of Commerce in terms of the Import Policy Order 2009-2010 nor any instructions have been issued whereby the confiscated goods which have been imported in violation of Import Policy Order are permitted to be re-exported once the adjudication proceedings have been initiated.

Question of Law.
The principles enunciated in case of maintainability of a reference under Section 196 of the Act may be summarized as follows:-
-- The scope of a reference application in terms of Section 196 of the Act is limited to a question of law;
--The question of law should arise from the order passed by the Tribunal;
--The question of law should have been raised in the pleadings or before Tribunal, regardless of being adverted to or decided;
If a question of law was raised in the pleadings or before the Tribunal and was not adverted to, that in itself is a question of law; and The questions of fact, and findings recorded by the Tribunal thereon, unless perverse or erroneous in fact and law, could not be interfered by the High Court in its referral jurisdiction.
Maintainability of Reference
After perusal of the record and the impugned judgment, we are of the view that no question of law arises from the impugned order passed by the Tribunal, nor question of law was pleaded and argued, before any of the forums below. We are, therefore, of the view that the impugned order does not require any interference by this Court in its reference jurisdiction.

Question of Law.
-- The principles enunciated in case of maintainability of a reference under Section 196 of the Act may be summarized as follows:-
-- The scope of a reference application in terms of Section 196 of the Act is limited to a question of law;
-- The question of law should arise from the order passed by the Tribunal;
-- The question of law should have been raised in the pleadings or before Tribunal, regardless of being adverted to or decided;
If a question of law was raised in the pleadings or before the Tribunal and was not adverted to, that in itself is a question of law; and The questions of fact, and findings recorded by the Tribunal thereon, unless perverse or erroneous in fact and law, could not be interfered by the High Court in its referral jurisdiction.
Maintainability of Reference
After perusal of the record and the impugned judgment, we are of the view that no question of law arises from the impugned order passed by the Tribunal, nor question of law was pleaded and argued, before any of the forums below. We are, therefore, of the view that the impugned order does not require any interference by this Court in its reference jurisdiction.

15.       However before parting with the order we would like to dilate upon the issue raised by Mr. Raja Muhammad Iqbal that the present reference applications have not been filed on the prescribed format. In our view the requirement of filing prescribed form is a mere technicality which does not affect the substance of the application. We in this regard would like to refer the decision given by this Court in the case of Abdul Ghani & Co. Vs. Commissioner of Income Tax (1962) 6 TAX 185 wherein the Honble Bench observed as under:-
In any case, the requirement that the application should be filed in the prescribed form is a mere technicality which does not affect the substance of the application. The requirement appears to us to be merely procedural and directory in nature, and not of a mandatory character, so that its non-compliance would not invalidate the application itself. It is significant that subsection (1) does not contain any penal clause in case there is any failure to comply with this requirement. The right to require a reference to the High Court is a substantive right conferred by the statute and cannot be allowed to be taken away by mere non-compliance with a technicality. In this view we are fortified by the observations of Their Lordships of the Supreme Court in Eastern Rice Syndicate v. Central Board of Revenue [P L D (1959) S.C. (Pak.) 361].

15.       However before parting with the order we would like to dilate upon the issue raised by Mr. Raja Muhammad Iqbal that the present reference applications have not been filed on the prescribed format. In our view the requirement of filing prescribed form is a mere technicality which does not affect the substance of the application. We in this regard would like to refer the decision given by this Court in the case of Abdul Ghani & Co. Vs. Commissioner of Income Tax (1962) 6 TAX 185 wherein the Honble Bench observed as under:-
In any case, the requirement that the application should be filed in the prescribed form is a mere technicality which does not affect the substance of the application. The requirement appears to us to be merely procedural and directory in nature, and not of a mandatory character, so that its non-compliance would not invalidate the application itself. It is significant that subsection (1) does not contain any penal clause in case there is any failure to comply with this requirement. The right to require a reference to the High Court is a substantive right conferred by the statute and cannot be allowed to be taken away by mere non-compliance with a technicality. In this view we are fortified by the observations of Their Lordships of the Supreme Court in Eastern Rice Syndicate v. Central Board of Revenue [P L D (1959) S.C. (Pak.) 361].

We also would like to clarify that our this decision should not be considered and read to be the one whereby we in any manner have given the permission to either import or release of the banned items as we have decided the above reference application only on the legal aspect without touching the merits of the case.
In this connection we would like to refer the decision given by the Honourable Supreme Court of Pakistan in the case of Abu Bakar Siddique and others vs. Collector of Customs Lahore and another (2004 PTD  2187) wherein the apex court has specifically observed that the goods which are imported in breach of any prohibition or restriction imposed by the law cannot be allowed to be circulated in the market.

On examination of the record we do not find that any question of law has been decided by the learned Member (Technical).  From the reading of the questions 1 to 4 we have found out that the tribunal has decided the appeal on pure and simple appreciation of the fact that as admittedly no request for denaturing or mutilation was filed by the applicant as provided under the provisions of section 27A of the Act before filing of the GD,
hence no benefit could be granted to the applicant. Therefore, in our considered opinion all the questions  which are sought to be referred are based on the factual finding of the case and therefore the present case does not fall within the ambit of the judgment as given by the learned Bench in the case of Muzammil Ahmed quoted supra. As it is a trite law that while exercising advisory jurisdiction this court has no jurisdiction to decide any question of fact or that of law which does not arise from the order of the tribunal.

Provisional Assessment:- The record of the case do lead to believe that in the first place there is no legal compliance for the provisional determination of duty, taxes and other charges on the goods in terms of Section 81(1) of the Act as there is no reasoned order of custom officer as required by the said provision.
Secondly the custom officers have not been able to support the very provisional assessment by any cogent reason or evidence or material rather as noted above the Assessing Officer so also Collector in his order-in-original could not find any justification to support even the provisional assessment but sought refuge in the provision of Section 81(4) of the Act. Whether such refuge in the facts and circumstances was available to the customs officers, in my view such cannot be the purpose and mandate of the law. If the very provisional assessment had no legs to stand on, the Assessing Officer so also the Collector ought to have admitted the defect of provisional assessment and proceeded to provide relief to the respondent, which in the facts and circumstances of the case would have been the judicious exercise of the powers by them and not to stifle the law and make it a mockery in the eyes of public.

Valuation:- 6. This brings us to the next question whether the basis which was adopted by the Customs to determine the price of the imported goods was contrary to law. As seen above, learned counsel has placed reliance on Collector of Central Excise and Land Customs
v. lmdad Ali 1969 S C M R 708 in which case, for the various reasons detailed in the judgment, the Supreme Court declined to uphold reliance on a certificate issued by the relevant Embassy of Pakistan as regards the price of the imported commodity. We would straightaway record that such basis, as a rule, suffers from serious infirmity and should be avoided. Where such a letter or certificate is relied upon the Embassy concerned should be asked, as opined in the Supreme Court judgment, to attach a price list or certificates from traders or their own certified assessment in the relevant country and short of this the version of the Embassy should not be accepted or relied upon.

Learned counsel for the applicant has readout the Order-in-Appeal and the judgment of the Customs, Excise and Sales Tax Appellate Tribunal, Banch-I, Karachi, passed in the instant case and also readout the judgment of this Court passed in Special Custom Reference Application No.58 of 2010, which has been upheld by the Honble Supreme Court vide judgment dated 24.05.2013 in Civil Petition No.381 of 2013,
which shows that the contention of the learned counsel for the applicant appears to be correct. 3. While confronted with such position, learned counsel for the respondents could not controvert the same. 4. Accordingly, we are of the opinion that the questions proposed and the controversy raised through instant Special Custom Reference Application is also covered by the judgment of this Court as referred to hereinabove, which has duly been approved by the Honble Supreme Court and the same is disposed of in similar terms respectively, question No.1 is answered in affirmative, questions No.2 and 3 are answered in negative and question No.4 is answered in affirmative, all in favour of the applicant and against the respondents department. Ref: Detailed Judgment in File No.1.) Spl. Custom Reference Application No. 271 of 2010SHC Print C-Done. HTML ¡¡¡¡¢¤£¡

Smuggling:- From the perusal of Section 2(S) (ii), it is clear that if any goods other than as mentioned in clause (i), notified by the Federal Government in the official gazette, (which exceeds rupees 150,000/- in value),
is brought into or taken out of Pakistan in breach of any prohibition or restriction for the time being in force will attract the provision of Section 2(S) and will be punishable under Section 156(8) of the Customs Act, 1969. Since there was restriction imposed by the State Bank of Pakistan, according to which foreign currency, in excess of US$ 10000 was not allowed to be taken out from Pakistan, except through banking channel, therefore, the act of the applicants attracted the provisions of Section 2(S) punishable under Section 156(8) of the Customs Act, 1969. We are of the view that the impugned order is based on concurrent finding of facts, which does not suffer from any factual and legal error, hence does not require any interference by this Court. Ref: Detailed Judgment in File No. 05.) Spl. Custom R.A. No.233 of 2010. ¡¡¡¡¢¤£¡

However, in view of the provisions of sections 32 and 81 of the Customs Act, the Customs Department was under a legal obligation to finalize the assessment under section 81 and to issue a notice under section 81 if at the time of finalization of the assessment it was discovered that the goods imported by the petitioners did not conform to the description of the imported goods.
On failure of the Customs Department to proceed in accordance with the provisions of section 81 of the Customs Act, the provisional assessment attained finality after the expiry of the period of 270 days which conferred a right on the petitioners to get the imported goods cleared on the value/price declared by them. In other words, subsection (4) to section 81 is a penal provision incorporated in the Scheme for the benefit of Assessee Importers/Exporter to save them from unnecessary harassment by the Customs authorities by way of lingering on their cases for indefinite period on the pretext of finalizing the assessment. When the practical working of scheme of provisional assessment, as provided under section 81 of the Act of 1969 is analyzed, it will be seen that the figure of provisional assessment de notes figure of levy of duty on the basis of value declared by the importer / Exporter plus any reasonable percentage of loading over such declared value made by the Assessing Officer to secure any excess payment of duties / charges which may be found due in addition to the duty levied on the declared value of the goods at the time of final assessment within the period stipulate by subsection (2) to section 81.

Concessionary:- Let us examine the first plea of the appellant that their Kit consists of six sets. We observe that this explanation given after the issuance of show cause notice, it not substantiated by any other evidence as firstly, the importer has not declared in his bill of entry that each kit consists of six sets. Secondly, the importer never declared this while submitting his application for obtaining the concession under the deletion programme.
Thirdly, the Form-S approved by CBR, which authorizes them to import at concessionary rate also does not mention that they can import six sets of bearing for Crank shaft. The form-S, on the other hand, authorizes the appellant for the import of one set at concessionary rate of customs duty. Thus the plea that their kit consists of six sets is just a belated attempt to prove their point which is not convincing.

Mis-declaration:- The applicant has not been able to make out a case requiring any interference by this Court in its reference jurisdiction, whereas the decision of the learned Tribunal is based on concurrent finding of fact which cannot be altered by this Court unless found to be perverse.
No material was produced by the applicant before the custom authorities to justify their act of mis-declaration nor any material has been shown to as in support of applicants claim.

The applicants contention regarding established practice is untenable in view of the fact that under the PaCCS the importer self-clears the goods after payment of duty/taxes on the basis of his own declaration and except in very few cases consignments are not physically examined and it is through post clearance scrutiny that correctness of the declarations and the amount of duty/taxes made by the importers is determined. Such scrutiny is carried out within five (05) years of such transactions.
Thus, clearance of goods from MCC PaCCS on the basis of self-assessment is subject to post clearance scrutiny and such transactions do not attain finality until the period of scrutiny lapses. It is, therefore, clear that clearance of consignments by few importers of a particular class of goods over a certain period of time by unlawfully availing the benefit of an exemption notification does not mean that a practice has been established which cannot be discontinued without issuing a public notice. The precedents quoted by the learned counsel clearly state that if the Customs authorities keep doing a thing over a long period of time in a particular manner that becomes an established practice which needs to be honoured unless the same is discontinued through a public notice whereas in the present situation it is the importers themselves (and the appellants in particular) who unlawfully caused substantial loss of revenue to the Exchequer by way of unlawfully self-availing benefit of notifications SRO 638(I)/2005, I, therefore, hold that the precedents relied upon by the appellants counsel are not relevant to the facts and circumstances of the instant case. It is apparent that the appellants had intentionally, and against the explicit provisions of law, and self-availed benefit of the above-mentioned notifications which was not admissible to the impugned goods.

The applicants contention regarding established practice is untenable in view of the fact that under the PaCCS the importer self-clears the goods after payment of duty/taxes on the basis of his own declaration and except in very few cases consignments are not physically examined and it is through post clearance scrutiny that correctness of the declarations and the amount of duty/taxes made by the importers is determined. Such scrutiny is carried out within five (05) years of such transactions.
Thus, clearance of goods from MCC PaCCS on the basis of self-assessment is subject to post clearance scrutiny and such transactions do not attain finality until the period of scrutiny lapses. It is, therefore, clear that clearance of consignments by few importers of a particular class of goods over a certain period of time by unlawfully availing the benefit of an exemption notification does not mean that a practice has been established which cannot be discontinued without issuing a public notice. The precedents quoted by the learned counsel clearly state that if the Customs authorities keep doing a thing over a long period of time in a particular manner that becomes an established practice which needs to be honoured unless the same is discontinued through a public notice whereas in the present situation it is the importers themselves (and the appellants in particular) who unlawfully caused substantial loss of revenue to the Exchequer by way of unlawfully self-availing benefit of notifications SRO 638(I)/2005, I, therefore, hold that the precedents relied upon by the appellants counsel are not relevant to the facts and circumstances of the instant case. It is apparent that the appellants had intentionally, and against the explicit provisions of law, and self-availed benefit of the above-mentioned notifications which was not admissible to the impugned goods.

The applicants contention regarding established practice is untenable in view of the fact that under the PaCCS the importer self-clears the goods after payment of duty/taxes on the basis of his own declaration and except in very few cases consignments are not physically examined and it is through post clearance scrutiny that correctness of the declarations and the amount of duty/taxes made by the importers is determined. Such scrutiny is carried out within five (05) years of such transactions.
Thus, clearance of goods from MCC PaCCS on the basis of self-assessment is subject to post clearance scrutiny and such transactions do not attain finality until the period of scrutiny lapses. It is, therefore, clear that clearance of consignments by few importers of a particular class of goods over a certain period of time by unlawfully availing the benefit of an exemption notification does not mean that a practice has been established which cannot be discontinued without issuing a public notice. The precedents quoted by the learned counsel clearly state that if the Customs authorities keep doing a thing over a long period of time in a particular manner that becomes an established practice which needs to be honoured unless the same is discontinued through a public notice whereas in the present situation it is the importers themselves (and the appellants in particular) who unlawfully caused substantial loss of revenue to the Exchequer by way of unlawfully self-availing benefit of notifications SRO 638(I)/2005, I, therefore, hold that the precedents relied upon by the appellants counsel are not relevant to the facts and circumstances of the instant case. It is apparent that the appellants had intentionally, and against the explicit provisions of law, and self-availed benefit of the above-mentioned notifications which was not admissible to the impugned goods.

Suffice to observe that the finding of a criminal Court is
no binding or even relevant for adjudicating a civil dispute before a Civil Court, which is to be decided on the basis of preponderance of evidence.

Quasi-Judicial:- ¦¦¦.. The intention of the Legislature is thus clear that the disposal of the goods seized under the Act is left entirely in the jurisdiction of the custom authorities.
The proceedings taken by the custom authorities for the confiscation of the goods are more in the nature of departmental proceedings which have been characterized in English and American jurisprudence as proceedings in condemnation of the goods for purposes of revenue and are regarded as proceedings of a civil nature, despite their penal character¦... 20. in the instant case, the right of the Special Judge, Customs, to punish the petitioner for smuggling and that of the Customs Officers to adjudicate whether the smuggled goods should be confiscated, both arise out of the same provision of law, namely, item 89 of subsection (1) of section 156 of the Customs Act, 1969. As held by the Supreme Court in Adams case (PLD 1969 SC 446), the proceedings before the Special Judge are judicial proceedings for the determination of the guilt of the person concerned for committing the act of smuggling and entailing a punishment of imprisonment of the same and the proceedings before the Customs Officers for the confiscation of the goods are departmental proceedings and such Customs Officers are not Judicial tribunals and that though the State has concurrent remedies, but each is independent of the other and they cannot be termed to be mutually exclusive. Earlier, the Supreme Court in Messrs S. A. Haroon and others v. The Collector of Customs Karachi and the Federation of Pakistan (PLD 1959 S.C. 177 at 201) had held that though the adjudicating officer was not a judicial tribunal, yet principles of natural justice applied before him, as proceedings before him were at least of a quasi-judicial character, if not of a judicial character. Adjudicating Proceedings/Judicial Proceedings:-12. It was not legally proved that the respondent had brought said currency into Pakistan. On the contrary it was established that he was attempting to smuggle it out of Pakistan. It is an established law that criminal proceedings, before Special Judge are judicial proceedings while proceedings conducted before Custom Authorities relating to adjudication are in the nature of departmental proceedings, though in certain cases they emanate from the same subject-matter, yet, they are independent to each other and not necessarily, the findings recorded by Special Judge shall always control the findings recorded by the Custom Authorities relating to adjudication proceedings. These proceedings go side by side but do not mingle. The authoritative judgment on this point is reported as Adam v. Collector of Customs, Karachi (PLD 1969 SC 446), where in a Full Bench of this Court comprising four judges, including the then Chief Justice observed as follows:-- Both are concurrent remedies but each is independent of the other. They cannot, therefore, be deemed to be mutually exclusive. Therefore, no question of double jeopardy arises when simultaneously or subsequently a trial is held to determine the guilt of the individual, who has been concerned in the offences in respect of the goods, which are the subject-matter of the adjudication proceedings. And since the proceedings for adjudication by the Customs Authorities and the criminal prosecution of the offender in the Court are not interdependent, they can proceed simultaneously and neither can remain under suspension for the sake of the other.

Quasi-Judicial:- ¦¦¦.. The intention of the Legislature is thus clear that the disposal of the goods seized under the Act is left entirely in the jurisdiction of the custom authorities.
The proceedings taken by the custom authorities for the confiscation of the goods are more in the nature of departmental proceedings which have been characterized in English and American jurisprudence as proceedings in condemnation of the goods for purposes of revenue and are regarded as proceedings of a civil nature, despite their penal character¦... 20. in the instant case, the right of the Special Judge, Customs, to punish the petitioner for smuggling and that of the Customs Officers to adjudicate whether the smuggled goods should be confiscated, both arise out of the same provision of law, namely, item 89 of subsection (1) of section 156 of the Customs Act, 1969. As held by the Supreme Court in Adams case (PLD 1969 SC 446), the proceedings before the Special Judge are judicial proceedings for the determination of the guilt of the person concerned for committing the act of smuggling and entailing a punishment of imprisonment of the same and the proceedings before the Customs Officers for the confiscation of the goods are departmental proceedings and such Customs Officers are not Judicial tribunals and that though the State has concurrent remedies, but each is independent of the other and they cannot be termed to be mutually exclusive. Earlier, the Supreme Court in Messrs S. A. Haroon and others v. The Collector of Customs Karachi and the Federation of Pakistan (PLD 1959 S.C. 177 at 201) had held that though the adjudicating officer was not a judicial tribunal, yet principles of natural justice applied before him, as proceedings before him were at least of a quasi-judicial character, if not of a judicial character. Adjudicating Proceedings/Judicial Proceedings:-12. It was not legally proved that the respondent had brought said currency into Pakistan. On the contrary it was established that he was attempting to smuggle it out of Pakistan. It is an established law that criminal proceedings, before Special Judge are judicial proceedings while proceedings conducted before Custom Authorities relating to adjudication are in the nature of departmental proceedings, though in certain cases they emanate from the same subject-matter, yet, they are independent to each other and not necessarily, the findings recorded by Special Judge shall always control the findings recorded by the Custom Authorities relating to adjudication proceedings. These proceedings go side by side but do not mingle. The authoritative judgment on this point is reported as Adam v. Collector of Customs, Karachi (PLD 1969 SC 446), where in a Full Bench of this Court comprising four judges, including the then Chief Justice observed as follows:-- Both are concurrent remedies but each is independent of the other. They cannot, therefore, be deemed to be mutually exclusive. Therefore, no question of double jeopardy arises when simultaneously or subsequently a trial is held to determine the guilt of the individual, who has been concerned in the offences in respect of the goods, which are the subject-matter of the adjudication proceedings. And since the proceedings for adjudication by the Customs Authorities and the criminal prosecution of the offender in the Court are not interdependent, they can proceed simultaneously and neither can remain under suspension for the sake of the other.

Quasi-Judicial:- ¦¦¦.. The intention of the Legislature is thus clear that the disposal of the goods seized under the Act is left entirely in the jurisdiction of the custom authorities.
The proceedings taken by the custom authorities for the confiscation of the goods are more in the nature of departmental proceedings which have been characterized in English and American jurisprudence as proceedings in condemnation of the goods for purposes of revenue and are regarded as proceedings of a civil nature, despite their penal character¦... 20. in the instant case, the right of the Special Judge, Customs, to punish the petitioner for smuggling and that of the Customs Officers to adjudicate whether the smuggled goods should be confiscated, both arise out of the same provision of law, namely, item 89 of subsection (1) of section 156 of the Customs Act, 1969. As held by the Supreme Court in Adams case (PLD 1969 SC 446), the proceedings before the Special Judge are judicial proceedings for the determination of the guilt of the person concerned for committing the act of smuggling and entailing a punishment of imprisonment of the same and the proceedings before the Customs Officers for the confiscation of the goods are departmental proceedings and such Customs Officers are not Judicial tribunals and that though the State has concurrent remedies, but each is independent of the other and they cannot be termed to be mutually exclusive. Earlier, the Supreme Court in Messrs S. A. Haroon and others v. The Collector of Customs Karachi and the Federation of Pakistan (PLD 1959 S.C. 177 at 201) had held that though the adjudicating officer was not a judicial tribunal, yet principles of natural justice applied before him, as proceedings before him were at least of a quasi-judicial character, if not of a judicial character. Adjudicating Proceedings/Judicial Proceedings:-12. It was not legally proved that the respondent had brought said currency into Pakistan. On the contrary it was established that he was attempting to smuggle it out of Pakistan. It is an established law that criminal proceedings, before Special Judge are judicial proceedings while proceedings conducted before Custom Authorities relating to adjudication are in the nature of departmental proceedings, though in certain cases they emanate from the same subject-matter, yet, they are independent to each other and not necessarily, the findings recorded by Special Judge shall always control the findings recorded by the Custom Authorities relating to adjudication proceedings. These proceedings go side by side but do not mingle. The authoritative judgment on this point is reported as Adam v. Collector of Customs, Karachi (PLD 1969 SC 446), where in a Full Bench of this Court comprising four judges, including the then Chief Justice observed as follows:-- Both are concurrent remedies but each is independent of the other. They cannot, therefore, be deemed to be mutually exclusive. Therefore, no question of double jeopardy arises when simultaneously or subsequently a trial is held to determine the guilt of the individual, who has been concerned in the offences in respect of the goods, which are the subject-matter of the adjudication proceedings. And since the proceedings for adjudication by the Customs Authorities and the criminal prosecution of the offender in the Court are not interdependent, they can proceed simultaneously and neither can remain under suspension for the sake of the other.

The Court file and have noticed that the petitioner has not raised any objection as to the assumption of jurisdiction by the respondent No.4. Further, the objection of jurisdiction has only been argued at the time of hearing of the petition and is not averred in the memo of petition
nor there is any specific prayer in this regard. Hence we are of the view that the objection regarding jurisdiction has raised as an afterthought and to cure the objection regarding the maintainability of the instant petition. In this context it would be advantageous to refer to the judgment of the Honble Supreme Court in the case of Commissioner of Income Tax Vs. Hamdard Dawakhana (Waqf) KHI, (supra) in which it has been observed that in case where any party resorts to statutory remedy against an order, then the same could not be abandoned or by passed without any valid and reasonable cause and cannot file constitution petition challenging the same action. The Honble Supreme Court has further held that such practice, in case when statute provides alternate and efficacious remedy up to the High Court could not be approved or encouraged. In the case of Arhsad Hussain (Supra), a Division Bench of this court has expressed the same view and has observed that the petitioner at his own sweet will and whims cannot be allowed to impugn the same cause of action in a writ petition filed before the Court and at the same time pursue the remedies available under the relevant law. The same view has been followed in the cases of M/s Pak Saudi Fertilizers Ltd., Vs Federation of Pakistan (2002 PTD 679), Bulk Shipping & Trading (Pvt) Limited Vs Collector of Customs (2004 PTD 509) and so also in the case of BP Pakistan Exploration & Production Inc. Karachi Vs Additional Commissioner Inland Revenue (2011 PTD 647).

The Court file and have noticed that the petitioner has not raised any objection as to the assumption of jurisdiction by the respondent No.4. Further, the objection of jurisdiction has only been argued at the time of hearing of the petition and is not averred in the memo of petition
nor there is any specific prayer in this regard. Hence we are of the view that the objection regarding jurisdiction has raised as an afterthought and to cure the objection regarding the maintainability of the instant petition. In this context it would be advantageous to refer to the judgment of the Honble Supreme Court in the case of Commissioner of Income Tax Vs. Hamdard Dawakhana (Waqf) KHI, (supra) in which it has been observed that in case where any party resorts to statutory remedy against an order, then the same could not be abandoned or by passed without any valid and reasonable cause and cannot file constitution petition challenging the same action. The Honble Supreme Court has further held that such practice, in case when statute provides alternate and efficacious remedy up to the High Court could not be approved or encouraged. In the case of Arhsad Hussain (Supra), a Division Bench of this court has expressed the same view and has observed that the petitioner at his own sweet will and whims cannot be allowed to impugn the same cause of action in a writ petition filed before the Court and at the same time pursue the remedies available under the relevant law. The same view has been followed in the cases of M/s Pak Saudi Fertilizers Ltd., Vs Federation of Pakistan (2002 PTD 679), Bulk Shipping & Trading (Pvt) Limited Vs Collector of Customs (2004 PTD 509) and so also in the case of BP Pakistan Exploration & Production Inc. Karachi Vs Additional Commissioner Inland Revenue (2011 PTD 647).

The Court file and have noticed that the petitioner has not raised any objection as to the assumption of jurisdiction by the respondent No.4. Further, the objection of jurisdiction has only been argued at the time of hearing of the petition and is not averred in the memo of petition
nor there is any specific prayer in this regard. Hence we are of the view that the objection regarding jurisdiction has raised as an afterthought and to cure the objection regarding the maintainability of the instant petition. In this context it would be advantageous to refer to the judgment of the Honble Supreme Court in the case of Commissioner of Income Tax Vs. Hamdard Dawakhana (Waqf) KHI, (supra) in which it has been observed that in case where any party resorts to statutory remedy against an order, then the same could not be abandoned or by passed without any valid and reasonable cause and cannot file constitution petition challenging the same action. The Honble Supreme Court has further held that such practice, in case when statute provides alternate and efficacious remedy up to the High Court could not be approved or encouraged. In the case of Arhsad Hussain (Supra), a Division Bench of this court has expressed the same view and has observed that the petitioner at his own sweet will and whims cannot be allowed to impugn the same cause of action in a writ petition filed before the Court and at the same time pursue the remedies available under the relevant law. The same view has been followed in the cases of M/s Pak Saudi Fertilizers Ltd., Vs Federation of Pakistan (2002 PTD 679), Bulk Shipping & Trading (Pvt) Limited Vs Collector of Customs (2004 PTD 509) and so also in the case of BP Pakistan Exploration & Production Inc. Karachi Vs Additional Commissioner Inland Revenue (2011 PTD 647).

Notices:-It is not out of context to mention here that in the case titled Ghulam Hussain Baloch and others, referred to above, the guidelines contained therein, reiterated in subsequent cases of
M. Yousuf Arain v/s Chairman NAB and another (2008 MLD 1431), Niaz Ahmed Baloch v/s Chairman NAB and 4 others (2008 MLD 1451) & Raja M. Zarat Khan and another v/s Federation of Pakistan through Secretary Ministry of Cabinet Division and two others (PLD 2007 Karachi 597) and verdict of Hon'ble Apex Court in the case of Dr. Arsalan Iftikhar (PLD 2012 Supreme Court 903) have not been followed by the NAB, which raises serious question, prima facie, as to the affairs, competence and professionalism of the members of JIT. In the case of Dr. Arsalan Iftikhar, as supra, the Honble Apex Court has further been pleased to observe that in the given circumstances noted above any inquiry by NAB in the matter will not be free from perception of partiality or bias or lack of competence to ensure the fair, impartial, honest and competent inquiry. N.A.B:-Suffice is to say that the purported initiation of action under Section 19 of National Accountability Ordinance 1999 is a series of moves initiated by NAB to pressurize the petitioners over their legal rights, which can be invoked and settled through Inland Revenue Authorities. In such view of the matter, no legal sanctity is attached to such letters/notices as the petitioners cannot compelled to produce record of Sales Tax/ Income Tax, under the garb of Section 19 of the Ordinance, consequently, the impugned letters/notices are quashed being corum non-judice.

Notices:-It is not out of context to mention here that in the case titled Ghulam Hussain Baloch and others, referred to above, the guidelines contained therein, reiterated in subsequent cases of
M. Yousuf Arain v/s Chairman NAB and another (2008 MLD 1431), Niaz Ahmed Baloch v/s Chairman NAB and 4 others (2008 MLD 1451) & Raja M. Zarat Khan and another v/s Federation of Pakistan through Secretary Ministry of Cabinet Division and two others (PLD 2007 Karachi 597) and verdict of Hon'ble Apex Court in the case of Dr. Arsalan Iftikhar (PLD 2012 Supreme Court 903) have not been followed by the NAB, which raises serious question, prima facie, as to the affairs, competence and professionalism of the members of JIT. In the case of Dr. Arsalan Iftikhar, as supra, the Honble Apex Court has further been pleased to observe that in the given circumstances noted above any inquiry by NAB in the matter will not be free from perception of partiality or bias or lack of competence to ensure the fair, impartial, honest and competent inquiry. N.A.B:-Suffice is to say that the purported initiation of action under Section 19 of National Accountability Ordinance 1999 is a series of moves initiated by NAB to pressurize the petitioners over their legal rights, which can be invoked and settled through Inland Revenue Authorities. In such view of the matter, no legal sanctity is attached to such letters/notices as the petitioners cannot compelled to produce record of Sales Tax/ Income Tax, under the garb of Section 19 of the Ordinance, consequently, the impugned letters/notices are quashed being corum non-judice.

Whereas, efficacious statutory remedy has already been provided for redressal of grievance to an aggrieved party. Reference in this regard can be made to the case of Khalid Mehmood vs. Collector of Customs reported as 1999 SCMR 1881, wherein the Honble Supreme Court has held as under:
There are other matters, however, where the Constitutional jurisdiction under Article 199 cannot be so readily resorted to. One such, falling in this category, would be matters amenable to the jurisdiction of an exclusive Tribunal, mandated by the Constitution itself. Another, which readily comes to the mind, would be disputes under a statute, postulating the appellate or revisional jurisdiction to reside either in the High Court itself or directly in the Supreme Court. An example, essentially relevant to the first, would be the ServiceTribunal where the Tribunal is mandated by the Constitution of Pakistan namely, Article 212, thereof and where an appeal lies directly from the Tribunals decision to the Supreme Court. Obviously, the High Court should be very slow in entertaining disputes covered by the jurisdiction of such a Tribunal even in matters where the High Courts jurisdiction cannot be taken away e.g. acts which are void, without jurisdiction or coram non-judice. In such cases of ouster, the High Court would consider it a better exercise of its discretion not to interfere. More or less a similar principle applies where an exclusive Tribunal or a regular Court has jurisdiction in a matter but the legislation, creating such Court or forum or conferring jurisdiction on the same, also ends up by providing appellate or revisional jurisdiction to the High Court itself. Obvious examples could be civil and criminal proceedings, emanating under the Code of Civil and Criminal Procedure, Income Tax Reference, Customs Appeals, etc. In such matters, where the High Court itself is the repository of the ultimate appellate, revisional or referral powers, conferred by the relevant statute, it is in the rarest of cases that the High Court may be persuaded to entertain a Constitutional petition and to enforce the Constitutional remedy in preference to its own appellate, revisional or referral dispensation arising in course of time.

Whereas, efficacious statutory remedy has already been provided for redressal of grievance to an aggrieved party. Reference in this regard can be made to the case of Khalid Mehmood vs. Collector of Customs reported as 1999 SCMR 1881, wherein the Honble Supreme Court has held as under:
There are other matters, however, where the Constitutional jurisdiction under Article 199 cannot be so readily resorted to. One such, falling in this category, would be matters amenable to the jurisdiction of an exclusive Tribunal, mandated by the Constitution itself. Another, which readily comes to the mind, would be disputes under a statute, postulating the appellate or revisional jurisdiction to reside either in the High Court itself or directly in the Supreme Court. An example, essentially relevant to the first, would be the ServiceTribunal where the Tribunal is mandated by the Constitution of Pakistan namely, Article 212, thereof and where an appeal lies directly from the Tribunals decision to the Supreme Court. Obviously, the High Court should be very slow in entertaining disputes covered by the jurisdiction of such a Tribunal even in matters where the High Courts jurisdiction cannot be taken away e.g. acts which are void, without jurisdiction or coram non-judice. In such cases of ouster, the High Court would consider it a better exercise of its discretion not to interfere. More or less a similar principle applies where an exclusive Tribunal or a regular Court has jurisdiction in a matter but the legislation, creating such Court or forum or conferring jurisdiction on the same, also ends up by providing appellate or revisional jurisdiction to the High Court itself. Obvious examples could be civil and criminal proceedings, emanating under the Code of Civil and Criminal Procedure, Income Tax Reference, Customs Appeals, etc. In such matters, where the High Court itself is the repository of the ultimate appellate, revisional or referral powers, conferred by the relevant statute, it is in the rarest of cases that the High Court may be persuaded to entertain a Constitutional petition and to enforce the Constitutional remedy in preference to its own appellate, revisional or referral dispensation arising in course of time.

Whereas, efficacious statutory remedy has already been provided for redressal of grievance to an aggrieved party. Reference in this regard can be made to the case of Khalid Mehmood vs. Collector of Customs reported as 1999 SCMR 1881, wherein the Honble Supreme Court has held as under:
There are other matters, however, where the Constitutional jurisdiction under Article 199 cannot be so readily resorted to. One such, falling in this category, would be matters amenable to the jurisdiction of an exclusive Tribunal, mandated by the Constitution itself. Another, which readily comes to the mind, would be disputes under a statute, postulating the appellate or revisional jurisdiction to reside either in the High Court itself or directly in the Supreme Court. An example, essentially relevant to the first, would be the ServiceTribunal where the Tribunal is mandated by the Constitution of Pakistan namely, Article 212, thereof and where an appeal lies directly from the Tribunals decision to the Supreme Court. Obviously, the High Court should be very slow in entertaining disputes covered by the jurisdiction of such a Tribunal even in matters where the High Courts jurisdiction cannot be taken away e.g. acts which are void, without jurisdiction or coram non-judice. In such cases of ouster, the High Court would consider it a better exercise of its discretion not to interfere. More or less a similar principle applies where an exclusive Tribunal or a regular Court has jurisdiction in a matter but the legislation, creating such Court or forum or conferring jurisdiction on the same, also ends up by providing appellate or revisional jurisdiction to the High Court itself. Obvious examples could be civil and criminal proceedings, emanating under the Code of Civil and Criminal Procedure, Income Tax Reference, Customs Appeals, etc. In such matters, where the High Court itself is the repository of the ultimate appellate, revisional or referral powers, conferred by the relevant statute, it is in the rarest of cases that the High Court may be persuaded to entertain a Constitutional petition and to enforce the Constitutional remedy in preference to its own appellate, revisional or referral dispensation arising in course of time.

A.T.T.:-While giving the detail of the F.I.Rs, it has been contended by the learned counsel that 2 FIRs pertain to the containers/goods dispatched from Port Muhammad Bin Qasim through MCC (PMBQ) while later 4 FIRs, from S.No. 3 to 6 above, pertain to the containers dispatched
from Karachi Port through MCC (Appraisement). The relevant Goods Declarations were processed by the Customs staff posted in the Transit Sections of both the Collectorates. The instant petitions have been filed by the customs officials of MCC (Appraisement) who were posted in the Afghan Transit Section of the Collectorate and processed the Goods Declarations of 34 containers without following the proper procedures hence nominated in the FIRs for further investigations to ascertain their criminal involvement, if any. Apparently, the gross negligence and serious procedural lapses on part of said officials facilitated the culprits to clear the under-reference containers from Port. Smuggling:-Per learned counsel, the under-reference FIRs have been lodged on specific directions of the Probe Committee, FBR, which is quite competent to assign any investigation to the Directorate General, I&I, specially in the circumstances when the staff of the clearance Collectorate is prima facie involved in the scam. In order to ensure impartiality and transparency in the investigations the instant prosecutions have been assigned to the Directorate General. Furthermore, Directorate General itself is empowered to investigate the cases of smuggling of goods imported in the garb of Transit Cargo as per its Charter of Function and notification SRO-486(I)/2007, dated 09.06.2007. It is also a settled proposition of law that if prima facie an offence has been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court. By accepting the constitutional petition the High Court erred in law to short circuit the normal procedure of law as provided under Cr.P.C. and police rules while exercising equitable jurisdiction which is not in consonance with the law laid down by this Court in A. Habib Ahmad v. M.K.G. Scott Christian PLD 1992 SC 353. The learned High Court had quashed the F.I.R. in such a manner as if the respondent had filed an appeal before the High Court against order passed by trial Court. The learned High Court had no jurisdiction to quash the impugned F.I.R. by appreciation of the documents produced by the parties without providing chance to cross-examine or confronting the documents in question. Respondents had alternative remedy to raise objection at the time of framing the charge against them by the trial Court or at the time of final disposal of the trial after recording the evidence. Even otherwise, respondents have more than one alternative remedies before the trial Court under the Cr.P.C. i.e. section 265-K, 249-A or to approach the concerned Magistrate for cancellation of the case under provisions of Cr.P.C. The respondents have following alternative remedies under Cr.P.C :- (a) To appear before the Investigating Officer to prove their innocence. (b) To approach the competent higher authorities of the Investigating Officer having powers vide section 551 of Cr.P.C. (c) After completion of the investigation, the Investigating Officer has to submit case to the concerned Magistrate and the Magistrate concerned has power to discharge them under section 63 of the Cr.P.C. in case of their innocence. (d) In case he finds the respondents innocent, he would refuse to take cognizance of the matter. (e) Rule 24.7 of the Police Rules of 1934 makes a provision for cancellation of cases during the course of investigation under the orders of the concerned Magistrate. (f) There are then remedies which are available to accused persons who claim to be innocent and who can seek relief without going through the entire length of investigations.

A.T.T.:-While giving the detail of the F.I.Rs, it has been contended by the learned counsel that 2 FIRs pertain to the containers/goods dispatched from Port Muhammad Bin Qasim through MCC (PMBQ) while later 4 FIRs, from S.No. 3 to 6 above, pertain to the containers dispatched
from Karachi Port through MCC (Appraisement). The relevant Goods Declarations were processed by the Customs staff posted in the Transit Sections of both the Collectorates. The instant petitions have been filed by the customs officials of MCC (Appraisement) who were posted in the Afghan Transit Section of the Collectorate and processed the Goods Declarations of 34 containers without following the proper procedures hence nominated in the FIRs for further investigations to ascertain their criminal involvement, if any. Apparently, the gross negligence and serious procedural lapses on part of said officials facilitated the culprits to clear the under-reference containers from Port. Smuggling:-Per learned counsel, the under-reference FIRs have been lodged on specific directions of the Probe Committee, FBR, which is quite competent to assign any investigation to the Directorate General, I&I, specially in the circumstances when the staff of the clearance Collectorate is prima facie involved in the scam. In order to ensure impartiality and transparency in the investigations the instant prosecutions have been assigned to the Directorate General. Furthermore, Directorate General itself is empowered to investigate the cases of smuggling of goods imported in the garb of Transit Cargo as per its Charter of Function and notification SRO-486(I)/2007, dated 09.06.2007. It is also a settled proposition of law that if prima facie an offence has been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court. By accepting the constitutional petition the High Court erred in law to short circuit the normal procedure of law as provided under Cr.P.C. and police rules while exercising equitable jurisdiction which is not in consonance with the law laid down by this Court in A. Habib Ahmad v. M.K.G. Scott Christian PLD 1992 SC 353. The learned High Court had quashed the F.I.R. in such a manner as if the respondent had filed an appeal before the High Court against order passed by trial Court. The learned High Court had no jurisdiction to quash the impugned F.I.R. by appreciation of the documents produced by the parties without providing chance to cross-examine or confronting the documents in question. Respondents had alternative remedy to raise objection at the time of framing the charge against them by the trial Court or at the time of final disposal of the trial after recording the evidence. Even otherwise, respondents have more than one alternative remedies before the trial Court under the Cr.P.C. i.e. section 265-K, 249-A or to approach the concerned Magistrate for cancellation of the case under provisions of Cr.P.C. The respondents have following alternative remedies under Cr.P.C :- (a) To appear before the Investigating Officer to prove their innocence. (b) To approach the competent higher authorities of the Investigating Officer having powers vide section 551 of Cr.P.C. (c) After completion of the investigation, the Investigating Officer has to submit case to the concerned Magistrate and the Magistrate concerned has power to discharge them under section 63 of the Cr.P.C. in case of their innocence. (d) In case he finds the respondents innocent, he would refuse to take cognizance of the matter. (e) Rule 24.7 of the Police Rules of 1934 makes a provision for cancellation of cases during the course of investigation under the orders of the concerned Magistrate. (f) There are then remedies which are available to accused persons who claim to be innocent and who can seek relief without going through the entire length of investigations.

A.T.T.:-While giving the detail of the F.I.Rs, it has been contended by the learned counsel that 2 FIRs pertain to the containers/goods dispatched from Port Muhammad Bin Qasim through MCC (PMBQ) while later 4 FIRs, from S.No. 3 to 6 above, pertain to the containers dispatched
from Karachi Port through MCC (Appraisement). The relevant Goods Declarations were processed by the Customs staff posted in the Transit Sections of both the Collectorates. The instant petitions have been filed by the customs officials of MCC (Appraisement) who were posted in the Afghan Transit Section of the Collectorate and processed the Goods Declarations of 34 containers without following the proper procedures hence nominated in the FIRs for further investigations to ascertain their criminal involvement, if any. Apparently, the gross negligence and serious procedural lapses on part of said officials facilitated the culprits to clear the under-reference containers from Port. Smuggling:-Per learned counsel, the under-reference FIRs have been lodged on specific directions of the Probe Committee, FBR, which is quite competent to assign any investigation to the Directorate General, I&I, specially in the circumstances when the staff of the clearance Collectorate is prima facie involved in the scam. In order to ensure impartiality and transparency in the investigations the instant prosecutions have been assigned to the Directorate General. Furthermore, Directorate General itself is empowered to investigate the cases of smuggling of goods imported in the garb of Transit Cargo as per its Charter of Function and notification SRO-486(I)/2007, dated 09.06.2007. It is also a settled proposition of law that if prima facie an offence has been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court. By accepting the constitutional petition the High Court erred in law to short circuit the normal procedure of law as provided under Cr.P.C. and police rules while exercising equitable jurisdiction which is not in consonance with the law laid down by this Court in A. Habib Ahmad v. M.K.G. Scott Christian PLD 1992 SC 353. The learned High Court had quashed the F.I.R. in such a manner as if the respondent had filed an appeal before the High Court against order passed by trial Court. The learned High Court had no jurisdiction to quash the impugned F.I.R. by appreciation of the documents produced by the parties without providing chance to cross-examine or confronting the documents in question. Respondents had alternative remedy to raise objection at the time of framing the charge against them by the trial Court or at the time of final disposal of the trial after recording the evidence. Even otherwise, respondents have more than one alternative remedies before the trial Court under the Cr.P.C. i.e. section 265-K, 249-A or to approach the concerned Magistrate for cancellation of the case under provisions of Cr.P.C. The respondents have following alternative remedies under Cr.P.C :- (a) To appear before the Investigating Officer to prove their innocence. (b) To approach the competent higher authorities of the Investigating Officer having powers vide section 551 of Cr.P.C. (c) After completion of the investigation, the Investigating Officer has to submit case to the concerned Magistrate and the Magistrate concerned has power to discharge them under section 63 of the Cr.P.C. in case of their innocence. (d) In case he finds the respondents innocent, he would refuse to take cognizance of the matter. (e) Rule 24.7 of the Police Rules of 1934 makes a provision for cancellation of cases during the course of investigation under the orders of the concerned Magistrate. (f) There are then remedies which are available to accused persons who claim to be innocent and who can seek relief without going through the entire length of investigations.

Function of FBR:-The plain reading of the above provisions would show that the aim of giving the rule making power to CBR is to carry out the purpose of the above statutes through subordinate legislation. The Federal Government in exercise of powers under
section 3 of Imports and Exports (Control) Act, 1950 (Act XXXIX of 1950), may by an order published in the official Gazette prohibit, restrict or otherwise control the import or export of goods of any specified description and regulate the same through license system and subsection (3) of section 3 of ibid Act, provides that section 16 of the Customs Act, 1969 shall be given effect in respect of goods, the import and export of which has been prohibited or restricted. Thus the Federal Government has the sole authority to regulate import and export of goods and impose conditions for grant of import and export license, issue orders for carrying out the purpose of Imports and Exports (Control) Act, 1950 and make laws for the import and export of goods across the borders whereas the function of CBR is to give effect to Customs Act, 1969, Sales Tax Act, 1990 and the Central Excise Act, 1944 in the light of policy of the Federal Government as contemplated by the Imports and Exports (Control) Act, 1950. There is clear distinction between the powers of the Federal Government under Imports and Exports (Control) Act, 1950 and the powers of CBR under the Customs Act, 1969, Sales Tax Act, 1990 and Central Excise Act, 1944. The framing of policy relating to the import and export of goods with or without any restriction is the executive function of the Federal Government and the Central Board of Revenue, subservient to the policies of Federal Government, may frame rules under the above referred statutes subject to the provisions of section 16 of Customs Act under which it is the prerogative of the Federal Government to prohibit or restrict the bringing into or taking out of Pakistan any goods by any route including the goods enumerated in 3rd Schedule to the Customs Act 1969. Under section 9 of the Customs Act, 1969 the CBR can declare the places as customs port, customs airport and land customs station for clearance of the goods to be imported or exported but is not empowered under said section or any other provision of law to restrict or prohibit the export or import of the goods through land route. (Emphasis supplied). -.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.- Pendency of Petition/Show-Cause Notice:- In view of hereinabove discussion, we are of the view that instant petition merits consideration as the imported Concrete Mixers have been detained at Port unlawfully, with malafide intentions, without assigning any plausible justification or issuance of any show cause notice to the petitioner, whereas the show cause notices issued on 08.09.2014 after issuance of pre-admission notice in the instant petition by this Court, appears to be an afterthought and an effort to thwart proceedings initiated by the petitioner through instant petition. In our opinion, issuance of show cause notice at such a belated stage, during pendency of instant petition and after passing of four months of illegal detention of petitioners consignment at port, otherwise appears to be an attempt to justify the illegal detention of consignment without any reason or justification. Consequently the show cause notice dated 08.09.2014 cannot be acted upon any further and is hereby declared to be void ab-nitio. Therefore, we had accordingly allowed instant petition vide short order dated 22-09-2014,

Function of FBR:-The plain reading of the above provisions would show that the aim of giving the rule making power to CBR is to carry out the purpose of the above statutes through subordinate legislation. The Federal Government in exercise of powers under
section 3 of Imports and Exports (Control) Act, 1950 (Act XXXIX of 1950), may by an order published in the official Gazette prohibit, restrict or otherwise control the import or export of goods of any specified description and regulate the same through license system and subsection (3) of section 3 of ibid Act, provides that section 16 of the Customs Act, 1969 shall be given effect in respect of goods, the import and export of which has been prohibited or restricted. Thus the Federal Government has the sole authority to regulate import and export of goods and impose conditions for grant of import and export license, issue orders for carrying out the purpose of Imports and Exports (Control) Act, 1950 and make laws for the import and export of goods across the borders whereas the function of CBR is to give effect to Customs Act, 1969, Sales Tax Act, 1990 and the Central Excise Act, 1944 in the light of policy of the Federal Government as contemplated by the Imports and Exports (Control) Act, 1950. There is clear distinction between the powers of the Federal Government under Imports and Exports (Control) Act, 1950 and the powers of CBR under the Customs Act, 1969, Sales Tax Act, 1990 and Central Excise Act, 1944. The framing of policy relating to the import and export of goods with or without any restriction is the executive function of the Federal Government and the Central Board of Revenue, subservient to the policies of Federal Government, may frame rules under the above referred statutes subject to the provisions of section 16 of Customs Act under which it is the prerogative of the Federal Government to prohibit or restrict the bringing into or taking out of Pakistan any goods by any route including the goods enumerated in 3rd Schedule to the Customs Act 1969. Under section 9 of the Customs Act, 1969 the CBR can declare the places as customs port, customs airport and land customs station for clearance of the goods to be imported or exported but is not empowered under said section or any other provision of law to restrict or prohibit the export or import of the goods through land route. (Emphasis supplied). -.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.- Pendency of Petition/Show-Cause Notice:- In view of hereinabove discussion, we are of the view that instant petition merits consideration as the imported Concrete Mixers have been detained at Port unlawfully, with malafide intentions, without assigning any plausible justification or issuance of any show cause notice to the petitioner, whereas the show cause notices issued on 08.09.2014 after issuance of pre-admission notice in the instant petition by this Court, appears to be an afterthought and an effort to thwart proceedings initiated by the petitioner through instant petition. In our opinion, issuance of show cause notice at such a belated stage, during pendency of instant petition and after passing of four months of illegal detention of petitioners consignment at port, otherwise appears to be an attempt to justify the illegal detention of consignment without any reason or justification. Consequently the show cause notice dated 08.09.2014 cannot be acted upon any further and is hereby declared to be void ab-nitio. Therefore, we had accordingly allowed instant petition vide short order dated 22-09-2014,