Honourable Chief Justice of Pakistan,
Honourable Chief Justice of Sindh High Court
National Accountability Bureau (NAB) has accused the innocent Customs Clearing Agents in lieu of National Logistic Cell (NLC) in the case of Nato missing containers. The NAB probed into the matter on completely illegal, unlawful, unjustified and unpractical grounds.
Safe transportation for Afghan Transit Trade was made Under Section 121 of Customs Act 1969 for which only Bonded Carriers were allowed to carry on transaction of departure of the conveyance from the port area. Only two Bonded Carriers i.e. Pakistan Railways and National Logistic Cell (NLC) were allowed by the Customs. The NAB demanded ATTI/CBC from Clearing Agents that should have been demanded from NLC who was the actual transporter as per act and rules. The record was demanded after lapse of the period of five years from the date of transaction, whereas Under Section 211 of the Customs Act 1969 and Rule 100 of Customs Rules 2001 the record of five years is to be maintainable.
The NAB has accused the innocent Clearing Agents without furnishing any solid/strong proofs and materials and referred the case to Honourable High Court. The National Accountability Bureau report is based on the material of filing of Goods Declaration received from PRAL. That data was transferred to PRAL by PACCS wherein required changes / adjustments were possible and its control was in the hands of Customs officers and PRAL.
The major proof of intentional error in system is the filing Goods Declaration on the License of Clearing Agents about which they were completely ignorant. Totally close of the officially website of PACCS proves that there was any intentional involvement of some people in missing containers. The PACCS System was started in 2005, the said GD was filed in March 2007 and no Notice regarding missing of the container was furnished by Customs before 2011 until official website of Customs PACCS was operative.
NAB did not work out on the further following points:-
• Either the Goods were manifested in Customs being the Afghan Cargo or Pakistani Cargo. If goods were not manifested as Afghan Cargo, the missing of the containers was beyond the control of Clearing Agents.
• Either Shipping Documents submitted at terminals by the Carriers for departure of vehicles were obtained by the NAB for scrutiny or not.
• Either the proof of missing containers is furnished in the High Court or not, if not on which basis it has been assumed that the containers were not crossed the border.
• Who was the Bonded Carrier that was actually responsible for safe transportation and to make transaction of departure of the vehicle Under Section 121 of Customs Act 1969. Please see Rule 600 the definition of Chapter XXV “(Afghanistan-Pakistan Transit Trade Rules of Customs Rule 2001 that “carriers“ means legal or natural person responsible for the transport of goods including vehicles by rail, road, either directly or using third party, any by whom or in whose name a contract of carriage for hire or reward has been concluded.”
• The Cross Border Goods Declaration should have been demanded for further scrutiny from the exit Collectorate. Those Clearing Agents who do not have Customs’ License in the exit points and cannot file the Goods Declaration why NAB accused them of being Border Clearing Agents that is unlawful and it proves that the NAB does not know the actual facts. In such cases how NAB assumed that the containers were missed.
Assistant Collector of Customs Mr. Usman Tariq quoted NAB Section 207 of Customs Act 1969 for responsibility of missing containers i.e. business relating to make transaction of departure of vehicle from ports whereas transaction of Afghan Transit was made under Section 121 of Customs Act 1969 that may only be made by the Bonded Carriers not Clearing Agents. Please see section 121 as under:-[121. Transshipment of goods without payment of duty.-
(1) Subject to the provisions of section 15 and the rules, the appropriate officer may, on application by the owner of any goods imported at any Customs-station and specially and distinctly manifested at the time of importation as for transshipment to some other Customs-station or foreign destination, grant leave to transship the same without payment of duty, if any, chargeable on such goods with or without any security or bond for the due arrival and entry of the goods at the Customs-station of destination.
(2) The Board may, subject to rules and such conditions as it may deem fit to impose, authorize certain carriers to transport goods under the multimodal, scheme. Goods transported under the multimodal scheme shall be specially and distinctly manifested at the time of importation as for transshipment to some other Customs-station or foreign destination.
It is challenge to NAB, AC Customs, PA Customs who accused those Clearing Agents for the missing containers who do not have Licenses of Bonded Carriers that Goods Declaration of any Clearing Agent for Afghan Cargo of any Container lying at port to make transaction for departure of vehicle from any seaport, if someone is succeeded, Clearing Agents would be bound to accept all undue liabilities otherwise case may be discharged immediately and exact accusers may be punished accordingly.
Some Rules of Customs Rules may be seen:
Rule 326. Definitions – In these rules, unless there is anything repugnant in the subject or context,-
(c) “carrier” means the Pakistan Railways, National Logistic Cell (NLC), Sambrial Dry Port Trust, Faisalabad Dry Port Trust, Multan Dry Port Trust or such other carrier as the Central Board of Revenue may approve from time to time and are duly licensed under Chapter VIII of Customs Rules,2001;
(e) “conveyance and transport unit” means conveyance, vehicles and transport units used by the carrier for the transshipment of goods from port to another Customs port or stations;
328. Conditions for qualifying as a bonded carrier and its operations.- (1) Transshipment shall only be allowed if the bonded carrier possesses a fleet of minimum twenty five registered vehicles in his name or company or are leased by them. The bonded Carrier will be allowed to use only such vehicles/trailer units which have a permanently installed/fixed tracking device of a reputable company. The Customs staff shall verify the satisfactory working of the tracker and the identity of the vehicle used by the bonded carrier for transshipment of consignments, as well as the road worthiness of the vehicle/trailer/prime mover and registration number and other particulars of the vehicles.
(6) The applicants shall deposit a bank guarantee or Defence Saving Certificates etc., or a mix of such securities for five million rupees with the concerned Collector of Customs to safeguard Govt revenue. The Collector of Customs, if not satisfied with this condition, alone may subscribe the system of revolving insurance guarantee keeping in view the huge amount of duty and taxes involved in transportation of bonded cargo to up-country dry ports. The amount of bank guarantee or Defence Saving Certificates shall be forfeited apart from other consequential penal action under the Act, and the rules made thereunder, if the bonded carriers misuse the facilities of the transhipment of the imported goods.
Please note if Clearing Agents are supposed by the NAB as bonded carrier, the recoverable amount in this case should have been forfeited as per Rule.
329. Responsibilities of the Carriers.- (1) Prior to submission of application (Appendix-I) for transshipment, the carrier shall satisfy himself that the actual description, quantity, quality and weight of the goods under transhipment are as per declaration in the IGM of the vessel.
In case any misdeclaration or substitution is found at subsequent stage, the carrier shall be held responsible under sections 32 and 121 of the Act.
(2) The carrier shall be responsible and bound to carry the goods to its destination without any delay and with utmost haste. The carrier shall also be bound to deliver the bonded cargo to its destination within the prescribed time-limit, using the transport route, as may be prescribed by the Board, from time to time.
The Clearing Forwarding Agents are not allowed to make business transaction of departure of conveyance / goods from port for Transshipment and safe transportation. However, there Licensee can make declaration of goods Under Section 79 and Customs formalities may be made on the Goods Declaration until the Containers / Goods are lying within in the custody of Customs’ bonded terminal. The terminal / Customs may issue transit permit only to the Bonded Carriers as per law and procedure who are responsible for safe transportation.
If the Goods Declaration was filed on License of Clearing Agents (with unknown sources), the Transit Permit was issued to the Bonded Carriers. In this case, NLC was the actual transporter and responsible to provide Cross Border Certificate vide section 641 of Customs Act 1969 read with rule 329 of Customs Rules 2001. The computerised system of NLC is showing transaction of the departure of the vehicles but on demand of Clearing Agents NLC did not provide necessary documents. It proves there is involvement of NLC in the missing containers. Even Terminals of Ports and Shipping Companies also refused to provide the required documents to scrutinise the case.
In a case data of PRAL consignee’s name was showing as Afghani Importer against GD No. 2848 dated 20.03.2007 while it was noticed that in the history of computerised system of QICT Consignee’s name was showing as Mehran Spice and Import Industry, Karachi and departure of the vehicle was made by NLC who intentionally refused to provide the required documents to the Clearing Agents and it was asked by the lower staff that higher authorities ordered them not to give any documents to someone in the case of missing containers. In such cases Clearing Agents are blind how GD was filed on their Licences and even consignees of Pakistan are also still blinds that their containers were moved for Transshipment.
In the light of above facts The Honourable Chief Justice of Pakistan, The Honourable Chief Justice of High Court of Sindh, Honourable FTO and Chairman FBR are requested to kindly give relief to the innocent Clearing Agents who are not involved in the cases of missing containers. The record of the missing containers may be demanded from the Terminal Operators, Actual Transporters M/s. NLC or Pakistan Railways for which they are responsible and shipping companies should also be ordered to provide specific manifests for scrutiny.
It is prayed that innocent Clearing Agents may please be released and the NAB is requested to investigate the case on the right grounds and directions as per Customs rules, acts and procedure.
With profound respect,
Great Eastern Co. Clearing and Forwarding Agent,