2025 PLP 1875 (PTD)

This application by way of Customs Reference has been filed under Section 196 of the Customs Act, 1969 (Act) against the judgment dated 27.01.2022 (impugned judgment) passed by the Customs Appellate Tribunal Bench-II, Lahore (Tribunal).

2. Relevant facts are that on 21.01.2020 the Customs staff, present in "Customs International Departure Hall" of "Allama Iqbal International Airport Lahore", seized 04-gold biscuits (each of one ounce) total weighing 113.398 Grams (gold in-question) recovered from applicant's hand bag, allegedly, being smuggled from Pakistan in contravention of Section 2(s) of the Act rend with relevant Rules and SROs. The matter was referred for adjudication and after issuing show-cause notice to the applicant, gold in-question was ordered to be confiscated vide order-in-original dated 13.08.2020 passed by the Deputy Collector of Customs (Adjudication). The said order-in-original was maintained up to the Tribunal vide impugned judgment, hence, this Reference Application has been filed raising the following questions of law and facts: i) Whether under the facts and circumstances of the case, the learned Customs Appellate Tribunal has totally ignored the fact-finding judgment passed by the Collector Customs (Appeals) in respect of impugned gold duly purchased through receipts brought into the country which could not be converted into jewelry and was being taken back to USA by the Petitioner along with family (05) passenger, hence could not be proved the element of mens rea? ii) Whether Customs Appellate Tribunal has erred in law in respect of impugned gold duly found reflected (lying un-concealed) during scanning of hand bag of Petitioner at first scanning machine of ASF merely misconceiving the aspect of "attempt" through concealment not attracted in the instance case? iii) Whether Customs Appellate Tribunal has erred in law while passing the judgment merely on unjustified and insubstantial attempt and declaration by ignoring the mandatory essentials of Section 2(s)-Smuggle through Allama Iqbal International Airport duly been notified route under section 9 of the Customs Act, 1969? iv) Whether Customs Appellate Tribunal has erred in law by invoking the invalid/inapplicable provision of Section 139 relevant to declaration considering the aspect of non-declaration, while the petitioner lady along with family (05) passengers declared 4 pcs of gold in the hand bag, on questioning by ASF and later on before customs prior to examination by Customs? v) Whether the Customs Appellate Tribunal acted illegally denying the original declaration made before ASF, which could not be denied as the impugned gold was lying open and un-concealed in the hand bag in front of customs for examination? vi) Whether the Appellate Tribunal has erred in law by ignoring the very fact regarding Petitioner's request to allow her to hand over the said gold to her brother standing outside or to detain, which he will get back on his return to Pakistan, but the request was not acceded to? vii) Whether Customs Appellate Tribunal has erred in law by passing non-speaking judgment against facts on record, law applicable and same is based on mis-reading and non-reading of both law and facts? viii) Whether under the facts and circumstances of the case, the learned Customs Appellate Tribunal has exceeded its jurisdiction and erred in law to pass the impugned judgment merely on technical grounds and even failed to decide the case on its merits rather decided the same in a slipshod manner? ix) Whether the Customs Appellate Tribunal has erred in law by ignoring the provisions of Section 187 of the Customs Act, 1969 ("the Act") whereby the initial evidentiary burden fell on the person in possession of the impugned goods to establish the legality of having these goods, thus she could be liable for smuggling or violating section of the Customs Act, 1969, whereas the delinquent person in the instant case produced document which did not correspond to the seized quantity? x) Whether the judgment of the Customs Appellate Tribunal can be considered as a speaking order being final forum for determination of facts of the case in blatant violation of express provisions of Customs law read with Article 24-A of the General Clauses Act, 1897 and Article 10-A of the Constitution of Pakistan, 1973?

3. Learned counsel for the applicant submits that gold in-question was purchased by the applicant from "M/s Jewelry on Devon Inc., Lakshmi Jewelers, 2546-W Devon Ave., Chicago" and she produced purchase receipts dated 01.03.2017 and 02.05.2018, which contains the gold bar numbers, hence, smuggling under Section 2(s) of the Act is not proved against her. He submits that even otherwise, gold in-question was seized at initial scrutiny and no opportunity was granted to the applicant for its declaration. He placed reliance on order dated 24.02.2023 passed by the Supreme Court in Civil Petition No.2245-L of 2021 titled "Collector of Customs, Lahore v. Musharaf Mehdi". Learned counsel for the respondent-department, on the other hand, supported the impugned judgment.

4. Arguments heard. Relevant part of the impugned judgment of Tribunal is reproduced hereunder: "

22. Basing on the touchstone of these principles enunciated by the superior courts, it is established that the gold bullion was detected by the ASF staff during first scanning at the airport and as per seizure report even no verbal declaration was made by the Respondent under section 139 of the Customs Act, 1969. By bringing the gold bullion to the airport, the Respondent had all the intent and attempted to take it out of Pakistan. SRO 566(I)/2005 dated 6.6.2005 prohibits taking out of gold bullion whereas the Baggage Rules, 2006 issued vide SRO 666(I)/2006 dated 28.06.2006 in Rule 3(B)(iv) only allow personal jewellery in reasonable quantity. Basing on facts alone, the gold bullion is not allowed to be taken out of Pakistan except as mentioned in Import and Export of precious Metals Jewellery and Gemstones Order, 2013 issued vide SRO 760(I)/2013 dated 2.9.2013. Lastly, the Respondent also admitted that no declaration was made by her while bringing gold bullion in Pakistan as well. Thus, in the presence of intent, mens rea, attempt, violation of express provisions of Foreign Exchange Regulation Act, section 2(s) of the Customs Act, 1969 read with SRO 566(I)/2005 dated 6.6.2005 and Baggage Rules, 2006 were made by the Respondent."

5. There is no dispute that under Sections 139(1) and (3) of the Act, the applicant was required to declare the gold in-question while bringing it into Pakistan, and failure to do so amounts to an offence of smuggling within the meaning of Section 2(s) of the Act. Similarly, under Section 7(A) of the Baggage Rules, 2006 (Baggage Rules) the passenger is required to file customs declaration form regarding accompanied baggage but admittedly the applicant did not declare the gold in-question at the time of her arrival in Pakistan. Likewise, while leaving Pakistan she was again required to declare the gold in-question under Section 139 of the Act read with SRO No.566(I)/2005 dated 06.06.2005 and SRO No.760(I)/2013 dated 02.09.2013 (SROs), which prohibit taking out of gold bullion. Under Section 3.B(iv) of the Baggage Rules, only personal jewellery in reasonable quantity is allowed and not the gold biscuits, but no declaration was made by the applicant while taking out the gold in-question out of Pakistan.

6. In the given circumstances, the Tribunal has lawfully held that gold in-question in liable to be confiscated being smuggled under section 2(s) of the Act read with the SROs and the Baggage Rules referred above. In the similar situation, the Supreme Court of Pakistan in Civil Petition No.1139-L/2019 titled "Rai Muhammad Umar v. Collector of Customs", vide order dated 06.10.2022, upheld the confiscation of undeclared gold jewellery, coins and diamonds kept in hand bag, which were required to be declared but the law was not complied with. The case law relied upon by the applicant is not applicable because in the present case, the applicant made concealment and non-declaration on two occasions; first while bringing the gold in-question into Pakistan and second while taking it out of Pakistan. Even, for the sake of arguments, if applicant's plea is accepted that she was not given enough opportunity to declare the gold at the time of leaving Pakistan, this will not absolve her from declaring the gold in-question at the time when she entered into Pakistan with said gold, and despite having ample opportunity did not declare it as required under the law.

7. In view of above discussion, the questions raised in this Application are answered against the applicant and by upholding the impugned judgment passed by the Tribunal, this Reference Application is dismissed.

8. The office will send copy of this order to the Tribunal in terms of Section 196(5) of the Act. MQ/N-9/L Reference dismissed.