2019 PLP (Trib (PTD)

Date of hearing: 19th July, 2018. JUDGEMENT MUHAMMAD NADEEM QURESHI, (MEMBER JUDICIAL-I).-- We intend to dispose of instant appeal filed by the appellant, Mr. Muhammad Salman Samana, against Order-in-Original No.723/2016-17 dated 01.06.2017, pass by Additional Collector of Customs, (Adjudication-I), Customs House, Karachi.

2. Brief facts of the case are that, present appellant/passenger was intercepted by Shift Incharge at International Departure Hall, JIAP, Karachi on 27.01.2017, while he was travelling to Dubai by Emirates Flight No. EK-0607 from Karachi, he was intercepted and recovery of foreign currency as per detail mentioned in the Show-Cause Notice under Section 171 of the Customs Act, 1969. In view of the facts and circumstances of the case, it is established that, the appellant has committed an offence which attracts the provisions of Sections 2(s), 16, (32) and 139 of the Customs Act, 1969 punishable under clauses (8), (9) and (70) of Section 156(1) of the Customs Act, 1969 read with notification of State Bank of Pakistan No. F.E.1/20/2015-SB dated 01.06.2015. The adjudicating officer vide impugned Order-in-Original confiscated the foreign currency and the seized Pakistani Passport may be handed over to the owner unconditionally.

3. Being aggrieved and dissatisfied with the impugned Order-in-Original the appellant filed the instant appeal before this Customs Appellate Tribunal on the grounds incorporated in the Memo of Appeal.

4. On behalf of the Appellant Mr. Muhabbat Hussain Awan, Advocate, appeared and contended that the Appellant has been holding USA Passport and residing in USA for the last may years and really did not know the prevailing foreign exchange law in Pakistan, therefore, he was unaware of the amount fixed for taking out of country during the foreign journey Actually it is an exception case. He further contended that, the appellant being American National as well cannot attempt to commit offence of smuggling of currency of petty amount actually it was happened due to ignorance of law, which can be treated as exceptional case. He further contended that, the appellant was restrained not to declare the excess amount on Declaration Form under Section 139 of the Customs Act, 1969 only to make out a case against appellant which is not just and fair in the eyes of natural justice. He further contended that the adjudicating officer had decided the case without hearing the appellant although he was present at the time of hearing but was not allowed to say anything which is highly objectionable being discrimination. He prayed that the Honorable Customs Appellate Tribunal may be pleased to vacate the show-cause notice and set-aside the impugned Order-in-Original with the directions to concerned Customs Authorities to release the whole confiscated foreign currency amount in the interest of justice.

5. On behalf of the Respondents nobody appeared nor filed any cross objections as required under subsection (4) of Section 194-A of the Customs Act, 1969, respondent only filed para-wise comments, same are hereby taken on record for assistance of court.

6. Arguments heard and concluded. After perusal of the record of the case as well as the oral and written arguments extended by both the parties, by doing so and after the careful scrutiny of the record it has been observed that the appellant has forwarded a sufficient cause and cogent reason to justify and placed legal arguments in support of plea. When the impugned order is unable to appreciate the legal point that according to clause (i) of the Notification No.F.E.2/98-SB dated 21.07.1998 notified by the State Bank of Pakistan in terms of Section 8(2) of the Foreign Exchange Regulations Act, 1947, where under such notification the confiscation of the foreign currency is to be made over and above the permissible limit of US$ 10,000/-. For resolving such aspect of the case and before giving any observation, we would prefer to go through the relevant provisions of law invoked in the case with reference to the smuggling it has been defined under Section 2(s) of the Customs Act, 1969 which reads as under:-- "Smuggle" means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force or evading payment of customs duties or taxes leviable thereon."

7. The currency has been included in sub-clause (i) of this clause. After equating the said definition with the State Bank of Pakistan's notification, it is clear from the context that in accordance with the foreign currency circular, State Bank of Pakistan permitted to take out maximum amount of US$ 10,000 on a foreign trip. Therefore, we are clear in our mind without having any element of doubt that, upto limit of US$ 10,000/-provisions of Section 2(s) of the Customs Act, 1969 are not attended. Such limit, in other words also does not have any embargo under Section 24 of the Foreign Exchange Act, 1947 on to the person to prove that he had requisite permission from the State Bank of Pakistan as required under Section 24 of the Foreign Exchange Act, 1947

8. Being custodian of law it is also the duty of the Court to follow the legal obligations and interpretation made thereon by the Courts as well as the legislature. The observations of the Higher Courts and the intention of the legislature and interpretations which lead to the manifest that absurdity should, if omission with a view to prevent the defeating of the very object of the rules, can fill in the gaps, in a piece of the legislation, where plain construction would lead to absurd results. It is well entrenched legal preposition that, an interpretation which is more in consonance with the avowed policy that decipherable from its title and preamble, it is to be preferred to an interpretation with the view that to avoid the pursuance from the abride, abrogate or infringe those rights which had accrued in favour of the parties by any mean. In this particular appeal, considering all aspects of the case it is responsibility of the Court to give effect to the true and patent intentions of the law makers and to supply the omissions in order to avoid and prevent the manifest and try to follow undoubted intentions of the legislature. Evidently the prescribed requirements and minimum facilities as required under the law are fulfilled by the appellant.

9. Record reflected the fact that, identical cases already decided by the Adjudication Authority, vide Order-in-Original No.02/2013 dated 25.07.2013, Order-in-Original No.01/2012 dated 01-06-2013, Order-in-Original No.16/2009 dated 08.09.2009, Order-in-Original No.17/2003 dated 24-06-2003, Order-in-Original No.22/2003 dated 30-09-2003, Honourable Supreme Court of Pakistan decided through Judgment reported in 2005 SCMR 492, "a facility allowed to some and denied to one is the discrimination" and also against the Article 25 of the Constitution of Pakistan. In present case there is no evidence to establish the element of mens rea (guilty mind) exists on the part of the Appellant and he cannot be saddled with the offence of smuggling levelled against him in the subject impugned show-cause notice as well as impugned Order-in-Original, Admittedly, there is no charge of mis-declaration or mis-statement, within the meaning of Section 32 of the Customs Act, 1969, hence impliedly the oral declaration made by the Appellant in terms of Section 139 of the Customs Act, 1969, read-with Rules 2(b) and 3 of the Baggage Rules, 2006, is required to be accepted by the officers. Therefore, neither it is a case of smuggling, within the meaning of Section 2(s) nor it is a case of import in violation of Import Policy Order, within the meaning of Section 16 of the Act read with Section 3 of the Import and Exports (Control) Act, 1950. Therefore, the charge framed for the aforesaid provisions of law is automatically liable to be dropped even as per statement of the department mentioned in the show-cause notice.

10. In pursuance of the above discussion herein above, particularly the interpretation of the law made under subject proposition, we are of the considered opinion that at the time of passing order/judgment, aforementioned aspect of the case has not been considered which causes the adequate breach of the natural justice and law, we hereby modify the impugned Order-in-Original to the extent that currency in excess of US$ 10,000 be confiscated and the respondent should return the amount of currency equivalent to US$ 10,000 to the Appellant.

11. Judgement passed and announced accordingly. HBT/71/Tax(Trib.) Order accordingly.