2003 PLP (Trib (PTD)

Diesel Engine for Hiace Van 21, with accessories 2.Nos F/O 3 Gear Box for Suzuki Car 2 Nos. F/O 4 Differential for Hiace Van 1 No. F/O Mushtaq Masih, the "Rahri ban" failed to produce any documents to show the legal import or his lawful possession of the goods but stated that he loaded the spare‑parts from Madki old spare‑parts dealer of Jhang Road, Faisalabad which were to be delivered to Malik Jabbar Auto Spare Parts Dealer of, Sargodha Road, Faisalabad. The said Malik Jabbar produced Bill of Entry Index No.32, Bill of Lading No. 55341739, dated 15‑1‑1997 alongwith an application stating therein that the seized goods were legally imported but the Customs staff did not accept these documents and submitted a contravention report on the basis of which Malik Jabbar was issued a show‑cause notice who contested the same vide written reply wherein he disowned ownership of items mentioned against Sr. No. 1, 3 and 4, resultantly the learned Adjudicating Officer through the impugned order confiscated these items and released two diesel engines of Hiace Van 2‑L.with accessories to its lawful owner unconditionally.

3. The appellant submitted an application to the Superintendent, Intelligence Customs on 4‑5‑2001 stating therein that the confiscated goods were owned by him and he had loaded these goods on the donkey cart alongwith diesel engines owned by Malik Jabbar only to save the fare and that Malik Jabbar did not allow him to join the adjudicating proceeding saying that he would himself look after the case of the appellant and that he ultimately approached Malik Abdul Latif Superintendent who after hearing his grievance got him issued copy of the impugned order whereafter he lodged the instant appeal. The appellant wants release of the confiscated goods on the ground that the goods stated to be foreign origin auto‑parts were in fact old scrap which he had purchased from Kabaria Market.

4. The appeal has been resisted by learned D.R..

5. The Assistant Registrar had reported that the appeal was barred by time. The question of condonation of delay was considered on 28‑11‑2001 and the appeal was held to be within time.

6. Admittedly the appellant did not join the adjudication proceedings. Admittedly Malik Jabbar who had initially claimed owner ship of the seized goods disowned the ownership of the items Nos. 1, 3 and 4 claimed to be his property by the appellant during the adjudication proceedings and the learned Adjudicating Officer confiscated these unclaimed items.

7. The appellant has claimed ownership of these items. Whether he ultimately succeeds or not, he had at least a 'right to be heard by the learned Adjudicating Officer. It is he who is prima facie the aggrieved person on account of the impugned order and has, therefore, right under section 194‑A of the Customs Act, 1969 to come up in appeal and challenge the said impugned order before the tribunal. Admittedly the appellant was not heard by the learned Adjudicating Officer for the reason that he was kept away from these proceedings by Malik Jabbar. Having considered all aspects of the case we have come to the conclusion that the appellant should be given an opportunity to prove his ownership of the confiscated goods during the proceedings to be held afresh by the learned Adjudicating Officer. In case the appellant establishes his claim of ownership, then the learned Adjudicating Officer will attend to the question as to whether the confiscated goods are in fact foreign origin spare‑parts (old and used) and if so whether these have been legally imported in the country.

8. The impugned order to the extent of confiscation of goods is set aside and the case is remitted to the learned Adjudicating Officer for a fresh decision in accordance with law keeping in view the aforesaid observations. C.M.A./711/Tax (Trib.) Case remitted.