2013 PLP 1988 (PTD)

IKRAMULLAH KHAN, J.

By this judgment we intend to decide Customs References Nos. 10, 11, 12, 13, 14, 15, 16, 17 and 20 of 2013, wherein almost in all these references, similar following questions of law have been raised:-- (i) That whether the vehicle in question is not non-duty paid vehicle and whether it did not brought to country through unauthorized routs. (ii) That whether in the presence of the Customs Act, 1969 as well as judgments of apex Courts the tribunal can release the non-duty paid vehicle on duty and taxes plus redemption fine. (iii) That whether learned appellate tribunal referred any provision of law or rules or S.R.O. under which the tribunal can release the vehicle. (iv) That whether the respondent is not under obligations to produce bill of entry with other documents regarding import of the vehicle and whether for import the vehicle the bill of entry is necessary or not. (v) That whether the PRAL system have any import record about the vehicle in one customs. (vi) That whether Tribunal did not conformed in it's order that the vehicle in question was smuggled one. (vii) That whether the notice under customs act, inventory memo, recovery, show cause notice and order in original were issued from the relevant authority or not the subsequent proceeding was done over these particulars or not. (viii) That whether tribunal can justify mere technicality can be made ground for release, as there are numerous judgments that the technicality should be avoided and the cases should be decided on merit. (ix) That whether act of the respondent does not come in the ambit of smuggling and whether vehicle was not illegal. (x) That whether the learned tribunal did not admit in it's judgment that the vehicle in question is illegal and smuggle one. (xi) That whether in the past such like vehicles were not used for terrorist activities. (xii) That whether in presence of S.R.O.499(I) the tribunal can release the non-duty paid vehicle on duty and taxes and whether S.R.O. 499(I)/2009 dated 13-6-2009 not negates when granted the said relief. (xiii) That whether the instant case does not relate to a fiscal fraud which is punishable under Customs Act, 1969. (xiv) That whether the vehicle did not release on the statement of Police employee and whether the opportunity was given to cross-examine that Police employee. (xv) That whether the learned appellate tribunal did not passed order without referring any laws or judgments of the apex Court. (xvi) That whether the order of the learned appellate tribunal is speaking one or erroneous in nature. (xvii) That whether the government exchequer has not been deprived from the legitimate revenue. (xviii) That whether the points for the determination of the order of the appeal by the appellate tribunal were correct. (xix) That whether the order of the appellate tribunal is not totally against the prescribe law of Customs Act, 1969 and customs rules. (xx) That whether appellate tribunal has not been given undue relief to the respondent. (xxi) That whether the impugned order is not discriminatory at the part of the appellant. (xxvii) That whether the impugned order is not based on misreading and non-reading of evidence on record.

2. All these customs references under section 196 of the Customs Act, 1969, were stated before this Court by petitioners, authorized officer in this behalf.

3. According to contentions of the petitioners, and as deduced from the available records, a numbers of vehicles fully described in the record of every reference stated therein, seized by Superintendent of intelligence and investigation FBR, Regional Office, Peshawar (hereinafter FBR) in various parts of the District, Peshawar with the help of local Police, detained in the office of FBR under section 17 of the Customs Act, 1969 for further verification of the status of these seized vehicles.

4. The concerned customs authorities for the purpose of import status of vehicle, checked the Custom Data Bank of the imported vehicles, as well as vehicles were examined through FSL, Peshawar for the purpose of tempering with chassis. Neither their legal import record was found nor declared by the FSL as tempered vehicles.

5. In view of the above results of investigation process, it was prima facie held that the seized vehicles were imported into the country through un-authorized routes and non custom paid. As such notices as under the law and rules were served upon the respondents/accused, as pre-requisite condition, to take further step to seize the vehicle under section 168 of the Custom Act, 1969 (thereafter as the Act) for violation of sections 2(s) and 16 of the Act read with section 3(1) of the Imports and Export (Central) Act, 1950, in view of the S.R.O. 499(I)/2009 dated 13-6-2009. The adjudication officer, on conclusion of the required proceeding confiscated the seized vehicles through his consolidated judgment dated 11-5-2011 in favour of the State in terms of clauses (8) and 89 of subsection (1) of section 156 of the Act, read with S.R.O. 499(I)/2009 and section 3(3) of the Imports and Export (Central) Act, 1950 for violation of section 2(s) of the Act read with section 3(3) of the Act 1950 ibid.

6. Respondents filed their appeal before Collector Customs (appeal) appellate forum in this regard, and the Collector Customs (Appeal) dismissed their appeals. The respondents, then, filed their second appeal before Custom Appellate Tribunal, (Peshawar Branch) whereby, the Custom Appellate Tribunal through the impugned judgments allowed all the appeals filed by all the respondents of these references, in terms of:-- "I allow this appeal and release the vehicle to its rightful owner on payment of fine equal to 15% of its customs value in addition to duty and taxes leviable there on"

7. Being aggrieved and dissatisfied, petitioners have stated these, reference before this Court, invoking the jurisdiction of this Court under section 196 of the Custom Act, 1969. The learned counsel, authorized by petitioner No. 2, for filling references before this Court as his legally authorized counsel, argued that, in view of S.R.O. 499(I)/2009 dated 13-6-2009, the learned custom appellate tribunal was not competent in this regard to order the release of confiscated vehicles in question thereof, and as such exercised a jurisdiction not vested in him there under the Custom Act, 1969, therefore, in the terms of the question raised there under in these references may be answered in favour of petitioners as the learned tribunal has exercised his jurisdiction, against the law, rules and S.R.O. ibid.

8. On the other hand, the learned counsel on behalf of respondents vehemently opposed the arguments of the learned counsel for petitioners, and submitted that no question of law is arising out the impugned order, while this Court cannot adjudicate upon the facts and prayed for dismissal of these references.

9. To highlight the scope of S.R.O. 499(I)/2009, the salient feature are reproduced hereunder as:-- "In exercise of the power conferred by section 181 of the Custom Act, 1969 (IV of 1969), and in supercession of its Notification No. 487(I)/2007 dated 9th June, 2007, the Federal Board of Revenue is pleased to direct that no option shall be given to pay fine in lieu of:- (I) Smuggled goods falling under clause(s) of section 2 of the Custom Act, 1969 (IV of 1969). (II) Not relevant to reproduce. (III) (IV) (V) (VI) (VII)

10. Clause (s) of section 2 of the Act define the word "smuggle" as: "Means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force for in route pilferage of transit goods], or evading payment of customs duties or taxes leviable there on;- (I) Not relevant to reproduce. (II) .. (III) any goods by route other than a route declared under section 9 or 10 or from any place other than a custom station and includes an attempt, abetment or connivance of so brining in or taking out of such goods and all cogitate words and expression shall be construed accordingly.

11. Admittedly, the released vehicle, were not brought into the country through authorized route as declared under sections 8 and 9 of the Act, and there is no denial from the fact, that custom duty and other connected taxes were not paid on these vehicles, so rightly has been declared by the customs authorities as "non custom paid" vehicles but no any such like question of law has agitated before this Court which has to be answered herein. The only question before us which is to be resolved and be legally answered is that whether despite of the promulgation of the S.R.O. 499(I)/2009 alter 13-6-2009, the custom appellate tribunal in exercise of his jurisdiction under section 181 of the Act, could rightly, legally released the already confiscated vehicle in questions.

12. It would be not out of context here in to reproduce session 181 of the Custom Act, 1969 for convenience to resolve the legal propositions stated thereof in all these reference:-- Section 181 of Custom Act, 1969. Option to pay fine in lieu of confiscated goods.

Whenever an order for the confiscation of goods is passed under this Act, the officer passing the order may give the owner of the goods an option to pay in lieu of the confiscation of the goods such fine as the officer thinks fit. Explanation Any fine in lieu of confiscation of goods imposed under this section shall be in addition to any duty and charges payable in respect of such goods, and of any penalty that might have been imposed in addition to the confiscation of goods [:] [Provided that the Board may, by an order, specify the goods or class of goods where such option shall not be given: Provided further that the Board may, by an order, fix the amount of fine which in lieu of confiscation, shall be imposed on any goods or class of goods imported in violation of the provisions of section 15 or of a notification issued under section 16, or any other law for the time being in force.]

13. No doubt, that smuggled goods (which includes vehicles of all type too) as described in clause (s) of section 2 of the Act, could not be released in lieu of fine in addition to all leviable duties and taxes in term of S.R.O. 499(I)/2009, which has been promulgated by the Board itself while deriving the authority from proviso provided there under the section 181 of the Act but, these instruction, directions and notifications issued under the proviso to section 181 of the Act, could not curtailed the power. jurisdiction of officers, exercising thereof their quasi judicial powers. Section 223 of the Act, place embargo on the Board in the manner as provided there under as;-- Section

223. Officers of Customs to follow Board's orders, etc.... All officers of customs and other persons "employed in the execution of this Act shall observe and follow the orders. instructions and directions of the Board: Provided that no such orders, instructions or directions shall be given so as to interfere with the discretion of the appropriate officer of customs in the exercise of their quasi-judicial functions].

14. In cases, where customs, authorities exercise a quasi judicial function, it is not bound by the instruction, directions and orders of the Board which interfere with its judicial discretion, it has to make its own decision on the basis of the facts and circumstances and the law applicable to the case. Section 181 of the Act, in unequivocal terms empowers officers adjudicating under the customs laws to exercise their discretion in lieu of confiscation to impose fine in addition to payment of leviable duty and taxes there under.

15. However, in case of confiscation, the vehicles would become the property of the government and under the rules, these vehicles are always put to auction, and usually, these vehicles, are sold on nominal rates to a class of auction mafia within institution but on fake name of their relatives and kins, while in lieu of confiscation, the fine imposable thereof in addition to normal leviable custom duty and taxes would be more beneficial to the state.

16. When the ultimate result in case of confiscation in regard to these vehicles would be and to put to auction in a clandestine manner then why not a good option to be exercised in the larger public interest. The S.R.O. 499(I)/2009 has been recently further amended to and all such like non custom paid, vehicles plying in the country were allowed to be levied on concessional custom duty then, the same treatment when extended by Tribunal in respect of seized vehicles in question is not against the established principle of law in this regard.

17. The police personnels who seized the vehicles in question, were not authorized officer under the custom Acts, and they were never conferred with such power of seizer, in case when there was no tempering of chassis etc since then all the further proceeding conducted in consequence Thereof in regard to illegal seizure falls to ground and the vehicles shall not be out rightly confiscated in the shield of S.R.O. 499(I)/2009.

18. This proposition has been already settled by the learned Tribunal Karachi Bench, Karachi in case of Sheikh Nazir Ali v. Customs Central and Excise and others (PTCL 2002 CL 340) and thereafter consistently followed by courts of the country in this regard. This court in an unreported case of "Additional Director Intelligence and Investigation, Peshawar v. Sartaj Khan" [T.R. 5-P/20120] decided on 5-6-2012 has held similar view as:-- "It was also held that under the relevant provision of Customs Act, 1969, the police have no power to take into possession the said vehicle. Moreover no tempering was deciphered on its chassis number, thus the same was held to be non duty paid vehicle there to release the vehicle on payment of fine equal to 20% of its customs value in addition to leviable duty and taxes was declared as legal order passed by the learned Appellate Tribunal Peshawar."

19. The treatment given by the learned appellate tribunal to all the questions raised thereof being proper and in accordance with law is not open to any interference.

20. There is also nothing in the impugned judgments as could show that the interpretation placed on section 181 read with section 196 of the Act, were without jurisdiction, coram non judice, we find no any inherent infirmity in the impugned judgments and no question of law has been arisen here in to be answered by this court under section 196 of the Act.

21. The questions of law, in term of the references stated herein for consideration of this Court, mostly related to facts, which should not be answered herewith, however, the crucial questions as stated herein above are the question No. ii, which is answered in positive by reasons herein stated above. SAK/435/P Order accordingly.