2006 PLP (Trib (PTD)

RAJ MUHAMMAD KHAN, (MEMBER (JUDICIAL)).

This is appeal against the Order-in-Appeal No.632 of 2005, passed by the Collector of Customs, Sales Tax and Federal Excise (Appeals), Custom House, Peshawar on 17-11-2005, whereby he accepting the appeal of Messrs Shamal and Mst. Shabana against the Order-in-Original No.7 of 2005, dated 31-10-2005 passed by the Deputy Collector of Customs, Central Excise and Sales Tax (Adjudication), Custom House, Peshawar, ordered the release of seized goods on payment of redemption fine equal to 35% of the appraised value of Rs.1,58,568 in addition to duty and taxes leviable thereon. Besides that, a personal penalty @ 5% of the appraised value of the goods was also imposed upon each owner of the goods in terms of section 156(1), (8) and (89) of the Customs Act, 1969 (hereinafter referred to as the Act), since it was proved that the goods were smuggled ones. The redemption fine imposed against the vehicle was reduced to Rs.10,000 also.

2. Brief facts of the case are that the Customs Anti-Smuggling Unit, Nowshera had intercepted Vehicle No.1748-Swabi and recovered from it foreign origin cloth measuring 5768 yards, valuing Rs.1,58,

568. Since on demand Messrs Shamal and Mst. Shabana failed to produce any proof of legal import or lawful possession of the foreign origin goods, the same were seized along with the vehicle for violation of the provisions of sections 2(s), 16 and 157 of the Act, read with section 3(1) of the Imports and Exports (Control) Act, 1950 on 12-9-2005. Subsequently, on adjudication of the matter, while the seized goods were ordered to be confiscated outrightly in terms of sections 156(1), (8) and (89) of the Act, read with section 3(3) of the Imports and Exports (Control) Act, 1950, the vehicle was released against redemption fine of Rs.25000 vide Order-in-Original No.7 of 2005.

3. Aggrieved of the Order-in-Original, appeal was preferred by the present appellant and one Shamal to the Collector (Appeals), who passed the impugned Order-in-Appeal as mentioned in para. 1 above. Hence this second appeal to this Tribunal, wherein it is pleaded, inter alia, that the Order-in-Appeal is harsh as the goods were non-notified item and the imposition of personal penalty was not justified. The appellant requested for the reduction of redemption fine imposed against the goods and remission of the personal penalty.

4. I have heard learned counsel for the appellant and D.R. assisted by Mr. Muhammad Amin Afridi, D.S. for the respondents and have gone through the record of the case.

5. It has been observed that although, the Deputy Collector (Adjudication) had ordered outright confiscation of the seized goods as these were found smuggled ones, but still he did not impose personal penalty on the accused respondents. Thereafter, the Collector (Appeals) has ordered the release of the goods under section 181 of the Act, which section does not provide for imposition of personal penalty. The Explanation to the said section mentions about fine to be in addition to any such penalty that might have been imposed in addition to the confiscation of goods. But here in this case no penalty was imposed by the Adjudicating Officer at the time of the confiscation of the goods.

6. So far the quantum of redemption fine imposed against the goods in lieu of confiscation thereof @35% is concerned, the same is on the high side, as normally and by established practice such fine happens to be 25% of the appraised value of the goods. The seized goods are admittedly non-notified item. We. have come across such cases, where the redemption fine was imposed @5% by the lower fora for the release of such time.

7. In view of what has been stated above, I accepted the instant appeal and order the reduction of redemption fine from 35% to 25% (twenty-five per cent) and remit the personal penalty @5% imposed against the present appellant Mst. Shabana only. The impugned Order-in- Appeal be considered modified accordingly.

8. Announced. C.M.A./24/Tax (Trib.)????????????????????????????????????????????????????????????? Order accordingly.