The Federal Tax Ombudsman (FTO) has observed that the FTO need not to interpret 'explanation' of Appendix-E of Import Policy Order (IPO) on import of old and used vehicles issued by Ministry of Commerce as FTO Ordinance, 2000 bars FTO's jurisdiction from interpretation of law, rules and regulations.
This has been stated by the FTO Office here on Wednesday on a complaint filed under Section 10(1) of the FTO Ordinance, 2000 (the Ordinance) alleging protracted delay by Customs authorities of Model Customs Collectorate of Appraisement (West) (the Deptt), Custom House, Karachi in clearance of a vehicle imported under personal baggage in terms of Appendix-E of the Import Policy Order, 2013 (the IPO-2013).
The complaint was referred for comments to the Secretary, Revenue Division in terms of Section 10(4) of the Ordinance, in response, the department submitted para-wise comments raising preliminary objections about maintainability of complaint on the ground that as the matter was sub judice before the competent adjudication authority, the complaint was hit by bar of jurisdiction under Section 9(2) of the Ordinance. Besides, the complaint was not filed by the owner of the
Vehicle, ie, the actual aggrieved person as required under Section 10(1) of the Ordinance and that the matter involved interpretation of Explanation' given in para-3 of Appendix-E of the IPO-2013 which fell under the jurisdiction of Ministry of Commerce. On merits, the deptt did not dispute the facts and contended that perusal of examination report and documents, ie, passport of passenger, export certificate, bill of lading etc revealed that the ship on which the vehicle was loaded, departed from the load port on 07.01.2015.Therefore, the vehicle was not permissible for import clearance under baggage scheme. The Deptt pleaded that, since the vehicle was imported in contravention of the IPO-2013, there was no justification for its release.
The department pleaded that para-8 of the IPO-2013 clearly stated that, in case of dispute about import status, Ministry of Commerce was the final authority. For the matter under reference, the Ministry of Commerce had already clarified the position vide OM dated 25.02.2013. According to the Deptt, in absence of any release instructions from the Ministry of Commerce the impugned vehicle could not be released. Resisting the complaint, the Deptt prayed for its dismissal.
The complainant contended that no SCN was communicated to the Complainant through electronic system or through any other source of communication before filing of complaint. Therefore, the matter was not hit by bar of jurisdiction under Section 9(2) of the Ordinance. According to the Complainant, being Customs clearing agent, he acted on behalf of the importer as his agent. In support of his plea he relied on Sections 207 and 208 of the Act and 182 of the Contract Act, 1872. The complainant pleaded that the FTO was not approached for interpretation of law but, rather, the FTO intervention was sought as the Deptt was not interpreting the law independently and as per the established principle of interpretation of statutes.
The complainant refused to approach the ministry as he was of the opinion that, as per Explanation of para 3 of Appendix-E of the IPO-2013, the age of vehicle was to be determined from 1st January of the year subsequent to the year of manufacture tilt the date of shipment as per Bill of Lading. As the Bill of Lading confirmed that the shipper handed over the vehicle to the shipping company on 26.12.2014, the age of the vehicle was to be determined on the basis of date of shipment and not on the basis of date of sailing of vessel.
The complainant got hold of a copy of Office Memorandum (OM) dated 11.03.2015 issued by Ministry of Commerce, allowing release of 08 vehicles on one time basis. Perusal of tracking data of said 08 vehicles revealed that 07 vehicles were handed over to shipping company on 24.12.2014 and the ship sailed from the port on 02.01.2015, whereas the, 8th vehicle was handed over to the shipping company on 08.01.2015 and loaded on the ship on 13.01.2015. The Complainant pleaded that said 08 vehicles were released by the Deptt whereas the vehicle subject of the complaint, being on similar footing was denied similar treatment.
The FTO order said that the importer of vehicle was Samiullah r/o Mardan. He being the importer of the impugned vehicle was the aggrieved person. The clearing agent cannot be termed as aggrieved person in terms of Section 10(1) of the Ordinance, according to which a complaint shall be made in writing on solemn affirmation or oath and shall be addressed to the Federal Tax Ombudsman by the person aggrieved or, in the case of his death, by his legal representative. Complaint was filed by the clearing agent as an aggrieved person but not as agent of Samiullah. Besides, the Complainant did not file any authorisation from Samiullah to file the complaint. As he was authorised only to represent Samiullah before the Customs Deptt, the complaint filed in his own name did not meet the requirement of Section 10(1) of the Ordinance. The objection so raised by the Deptt being supported by Section 10(1) of the Ordinance does not permit treatment of the clearing agent in this case as aggrieved person. The complaint, therefore, filed in the present form is not maintainable.
Adverting to the objection about matter requiring interpretation of law it would suffice to observe that it was an admitted fact that 08 vehicles, having same status, were refused release by the Deptt whereupon, the importers approached Ministry of commerce seeking permission for release of used/second hand vehicles. The Ministry vide OM dated 11.03.2015 decided to allow import of the vehicles on one time basis, thereby, meaning that vehicles did not qualify for import as the same, though, were handed over to the shipping company before 31st December but the ship sailed after 1st January. Besides, the Ministry of Commerce vide OM dated 25.02.2013 issued clarification that the date of EGM and Cargo Vessels leaving the port of export may be considered with reference to cut-off date for the purpose of SRO 1441(1)/2012 dated 12.12.2012 issued by the Ministry of Commerce.
In such view of the facts, FTO need not interpret 'Explanation' of para 3 of Appendix-E of IPO. Besides, Section 9(2)(b) of the Ordinance bars FTO's jurisdiction from interpretation of law, rules and regulations. It would be relevant to observe that, the vehicles having status similar to the status of the vehicle subject of complaint, were allowed release by the Ministry vide OM dated 11.03.2015 which was restricted to 8 vehicles mentioned in OM and the said OM could not be applied to some vehicle other than mentioned in the said OM. The Complainant was required to get permission of Ministry of Commerce for release which he did not opt. Therefore, the Deptt in the light of Explanation given vide para-3 of IPO, OM dated 25.02.2013, Office Order dated 22.01.2015 and Alert Notice dated 27.01.2015 for implementing the Explanation of para-3 of Appendix-E of IPO, could not release the vehicle which left the port of shipment after 31st December. Refusal of the Deptt, therefore, cannot be termed illegal, violation of law, rules, regulation or practice to attract provisions of Section 2(3) of the Ordinance.
The complainant was mainly aggrieved by the OM dated 25.02.2013 issued for clarification of Explanation to para 3 of Appendix-E of IPO issued by Ministry of Commerce whereas, under Section 9(1) of the Ordinance, the FTO may on a complaint by any aggrieved person, or on a reference by the President, the Senate or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, investigate any allegation of maladministration on the part of the Revenue Division or any tax employee, where after no scope was left for argument to extend FTO's jurisdiction to Ministry of Commerce or any other department or authority except Revenue Division or any federal tax employee. Therefore, the acts of Ministry of Commerce falling outside FTO's jurisdiction cannot be taken cognisance of by the FTO.
In such view of the facts and law, the complaint is liable to be rejected as it has not been filed by the aggrieved person and no case of maladministration was made out against the Deptt implementing the law and instructions issued by Ministry of Commerce which fails outside the FTO's jurisdiction, the FTO order added.
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