2004 PLP 819 (PTD)

"(4) In the case of personal' baggage imports vehicles must be registered in the name of the applicant at least sixty days prior to his departure for Pakistan and in case of transfer of residence at least two years prior to his departure for Pakistan."

6. During verification of their Bills of Entries and other documents it was found that there was violation of sub‑rule (4) of rule 3 to Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000 as the vehicles in question had not been registered in the name of their respective importers/respondents within the period stipulated in the afore‑referred provision. Thus in terms of the order‑in‑original, the Additional Collector Customs directed confiscation in the light of S.R.O. 374(I)/2002, dated 15‑3‑2002 (as amended vide Notification S. R. O. 485(I)/2002, dated 7‑6‑2003) which reads as under:‑‑ "Notification No.S.R.O.374(I)/2002, dated 15‑3‑2002.‑‑In exercise of the powers conferred by section 181 of the Customs Act, 1969 (IV of 1969), and in supersession of the order, dated the 17th December, 1998, the Central Board of Revenue is pleased to order that:‑‑ (a) No option shall be given to pay fine in lieu of confiscation in respect of smuggled goods falling under clause (s) of section 2 of the Customs Act, 1969 (IV of 1969), or goods imported in violation of section 15 of the Customs Act, 1969, or banned items notified vide Appendix‑A of the Import Trade and Procedures Order, 2000, including job lot and stock lot items where the customs duty is zero per cent or vehicles imported in violation of Import Trade and Procedure Order, 2000". The last sentence added in the afore‑referred clause (a) i.e. "or vehicles imported in violation of Import Trade and Procedure Order, 2000" was added vide amending S. R. O. 485(I)/2002, dated 7‑6‑2003. Prior to that the Customs Authorities had the authority to give option to the owner to pay in lieu of confiscation of goods such fine as the officer thinks fit as provided in section 181 of the Customs Act. It reads as under:‑‑ "(181) 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 lie 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 or 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." 7‑A. The amendment in the S.R.O. was brought about on 7th June, 2003 under the first proviso to section 181 of the Customs. When the respondent/importers were transferred to their home country, when they purchased the vehicles and even after arrival when they filed Bills of Entries the law provided that they should be given the afore‑referred option. This right had accrued to them to pay the fine in lieu or confiscation. This right could not have been taken away arbitrarily under the principle of locus poenitentiae enshrined in section 21 of the General Clauses Act which reads as under:‑‑ "(21). Power to make, to include power to add to, amend vary or rescind orders, rules or bye‑laws. Whereby any Central Act or Regulation, a power to issue notifications order, rules, or bye‑laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and condition if any, to add to, amend, vary or rescind any notification, orders, rules or bye‑laws so issued. In Elahi Cotton Mills Limited and others v. Federation of Pakistan through Secretary, Ministry of Finance Islamabad and others (PTCL 1997 CL 260), the August Supreme Court, at page 400, held as under:‑‑ " .We may point out that an executive order/notification which is detrimental or prejudicial to the interest of a person, cannot operate retrospectively. However, a beneficial, executive order/notification issued by an executive functionary can be given retrospective effect. In this regard it will suffice to refer to the judgment of this Court in the case of Army Welfare Sugar Mills Limited and others v. Federation of Pakistan and others (1992 SCMR 1652)."

7. Confronted with the case No.2 amending S.R.O. could not have retrospective effect, learned counsel for the appellant attempted to argue that the goods were smuggled goods and, therefore, those were liable to be confiscated even otherwise. We are afraid this argument is not available to the appellant's learned counsel at all as, at no stage, the Customs Department alleged that those were smuggled goods. The goods were duly imported after proper declaration and the only ground for confiscation by the Additional Collector Customs was that the import was violative of rule 3(4) of the Personal Baggage and Gift Scheme (Import of Vehicles) Rule, 2000.

8. For what has been discussed above, we do not find the impugned judgment to be exceptionable to warrant interference in these Customs Appeals as no question of law has been raised either. Resultantly, these Customs Appeals; having no merit, are accordingly dismissed in limine. W.A.M./C‑238/L Appeals dismissed.