2020 PLP (Trib (PTD)

SYED SARDAR HUSSAIN SHAH, CHAIRMAN/MEMBER (JUDICIAL).

This appeal filed by Mohammad Tahir son of Rafiullah (appellants herein) is against the Order-in-Original No.356/2015 dated 27.06.2015 received on 07.07.2015, passed by the Learned Additional Collector of Customs (Adjudication), Peshawar.

2. Brief facts of the case as per prosecution story are that on 13.02.2015 during routine checking by troops ex Khyber Rifles seized Saudi Riyal at Torkham Check Post. The seized currency while being smuggled from Pakistan to Afghanistan without valid documents. The smuggler/owners Mr. Muhammad Tahir son of Rafi Ullah r/o Landikotal Shinwari was not in possession of any legal import/export documents. Thereafter Khyber Rifles troops were seized the currency under the provision of Section 168 of the Customs Act, 1969 for violation of section 2(s) (i)(ii)(iii) of the Customs Act, 1969 read with Section 3(1) and (3) of Imports and Exports (Control) Act, 1950 punishable under section 156(1) clause (89) of the Customs Act, 1969. The case was referred for adjudication.

3. After passing of the Order-in-Original No.356/2015 dated 27.06.2015, the Learned Additional Collector of Customs (Adjudication), Peshawar passed the impugned order. The operative part of the impugned order is as under:- " .I am led to the conclusion that the charges levelled in the show-cause notice C.No.Cus-Adj/ADC-1/F.C./21/2015/11753 dated 10.04.2015 stand established beyond any shadow of doubt. Therefore in exercise of powers conferred upon this office under section 179 of the Customs Act, 1969, the seized currency is hereby confiscated outright in terms of clauses (8) and (89) of Section 156(1) of the Customs Act, 1969. A personal penalty of Rs.6,00,000/- (Six Hundred Thousand rupees) in terms of Section 156(1) clauses (8) and (89) of the Customs Act, 1969 is also imposed on the respondent."

4. Aggrieved of the above impugned order, the appellant has filed the instant appeal.

5. Arguments heard. Record perused as well as we have gone through written reply of the respondent and arguments heard. The currency was recovered from the appellant at Border in this respect recovery memo. was prepared by Major ASO Muhammad lmran. In the prevailing procedure and thumb impression or signature of the accused as required to obtain on the recovery memo. and in the recovery memo. reveals that there was no thumb impression or signature of the appellant and further more there was no witnesses available on the recovery memo. According to the statement of ASO Officer, the Frontier Crops are empowered to seize money but there was no evidence. It is important to mention here that the Notification S.R.O.1090(I)/2010 dated 01.12.2010 stipulates limits, conditions specified as follows:- (i) the functions shall be limited within 20 kilometers of the International Borders; (ii) the function shall exclude the City Municipal Limits, Customs areas, Customs Station, Ports, Borders, Customs Stations, International Airports and Bonded Warehouses etc; (iii) they shall not check any bona fide passenger's baggage and goods cleared from any Customs area."

6. The counsel for the appellant submitted that the currency was apprehended close to Torkham by the F.C. Troops and thereafter it was handed over to the Customs Staff for further necessary action and in this case the recovery was so conducted. The appellant was apprehended at Torkham and that there are many markets available and business is in abundance. According to recovery memo Saudi Riyals worth 5,00,000/- were recovered from the appellant. The Adjudicating Authority has outright confiscated seized currency and imposed a fine of Rs.6,00,000/- upon the appellant. The said confiscation and personal penalty are unlawful and unjustified. The Prosecution Agency did not take into possession passport or any other itinerary documents in respect of travelling of the appellant outside of Pakistan. Nothing shows on the record that the appellant was taking out the currency from Pakistan to another country.

7. The said passenger (the appellant) did not resist authorities to present his baggage for verifying the contents, besides handing over the currencies to the said authorities. The action of the appellant as an attempt at smuggling under provisions of 2(s) of the Customs Act, 1969 read with Notification 556(I)/2006, and Rule 16 of the Baggage Rules is unrealistic on the part of the Respondents. In the instant case the circumstances are much more favourable to the stance of the appellant having complied with the instructions of the departmental official, to handover his baggage/currency to the officials without any fuss or hindrance. This action does not entail confiscation and imposition of penalty.

8. In view of the above, we allow this appeal and set aside the impugned Order-in-Original No.356 of 2015 dated 27.06.2015.

9. The appeal is disposed of in above terms. SA/52/Tax(Trib.) Appeal allowed.