2026 PLP 813 (PTD)

Dr. KHURSHID IQBAL, J.

This is a Reference under section 196 of the Customs Act, 1969, ("the Act"), from the judgment dated 01.03.2024 rendered by the learned Customs Appellate ("Tribunal"), Peshawar Bench, by which the Appeal No. 30/PB of 2022 filed by the respondents Muhammad Afzal and others, was allowed.

2. Facts shortly are that on 03.11.2023, the staff of Field Intelligence Unit, DI, Khan, on information conveyed by Director, Intelligence and Investigation (Customs)-FBR, Peshawar, made barricade at Mitha Khan Hotel, Daraban Road, DI, Khan. Meanwhile the suspicious vehicle bearing registration No. TTD-317-Quetta, loaded with fresh onion, was signalled to stop. On cursory search, suspected white bags apparently of Skimmed Milk Powder concealed beneath fresh onion was found. By suspecting that there would be substantial quantity of smuggled goods, the impugned vehicle was brought to the office of the Field Intelligence Unit, DI, Khan. On demand, the driver Muhammad Afzal could not produce any legal documents regarding its legal import or lawful possession, the same were, therefore, seized under section 168 (1) of the Act for violation of Sections 2(s) and 16, 157(2) of the Act, read with Section 3(1) of the Import and Export (Control) Act, 1950.

3. Further formalities were fulfilled. The matter was considered by the Deputy Collector of Customs (Adjudication), Peshawar, ("the Adjudicating Authority"), who passed an Order-in-Original, bearing No. 326 of 2023, dated 20.12.2023, directing outright confiscation of the seized goods and released the vehicle in question on 20% redemption fine of its custom value. The Collector Appeals vide Order-in-Appeal No. 30/PB/2024 dated 01.03.2024, accepted the appeal of the applicant, by setting aside the impugned Order-in-Original. The respondent/department filed an appeal before the worthy Tribunal, who passed the impugned order.

4. The following questions of law were posed in the instant reference: A. Whether, the Tribunal was justified to ignore subsection (1) of Section 168 of the Customs Act, 1969? B. Whether, the Tribunal was justified to ignore Sections 2(s) and 16 of the Customs Act, 1969? C. Whether, the Tribunal was justified to ignore Section 3(1) of the Imports and Exports (Control) Act, 1950? D. Whether, the Tribunal was justified to ignore that the expiry date of the goods in auction documents is March, 2025 while on physical Examination of the seized/confiscated goods the expiry date is august and September, 2025? E. Whether, the difference in the Expiry dates was not sufficient enough for invoking Section 2(s) and Section 16 of the Customs Act, 1969? F. Whether, the admission(s), embodied in the written application dated 20.12.2023 of the respondents, coupled with the difference in the expiry dates; was not sufficient enough for dismissing the appeal? G. Whether, the Tribunal was justified to ignore that smuggled goods come under the provisions of Section 2(s) and Section 16 of the Customs Act, 1969? H. Whether, the learned Tribunal has exercised its jurisdiction in accordance with law? I. Any other ground during the course of arguments.

5. Arguments of Mr. Javed Akhtar, learned counsel for the petitioner and Mr. Gulab Shah Afridi, learned counsel for the respondents, heard at length and record gone through.

6. Question G is repetition of question B . In the rest of the questions, individual sections of the law have been referred which are covered in question 'H'. Hence, we proceed to answer question 'H'.

7. Perusal of the record shows that Ijaz Khan /respondent No.02, the real owner of the goods; submitted an application to the Additional Collector (I&I) Customs, Peshawar on 07.11.2023, stating that he had purchased the seized Skimmed Milk in the auction proceedings on 18.10.2023, held in the Custom House, Quetta, against which he paid Rs.38,61,000/-. He had also purchased 390 sacks of the onions, against which he had paid Rs.433,400/-. He was transporting the above referred goods to Lahore, when the applicant-authority seized them and later on, confiscated. His application further shows that he had submitted documents of auction and bank receipts. On the record of this reference, copies of challans and release orders dated 19.10.2023 are available, which we have perused. The Additional Collector in his Order-in-Original dated 20.12.2023 did not consider the aforesaid application and the documents. Rather, he has referred to a written application dated 20.12.2023, in which the respondents expressed their willingness to pay the leviable duties and taxes on the seized goods. Copy of that application is not available on the record. It was, this sole and significant aspect of the matter, that the Worthy Tribunal has aptly considered. We have gone through the order of the Worthy Tribunal, which is well reasoned.

8. In view of the above, we answer the essential question No. 'H' in affirmative. Hence, this custom reference is dismissed as such. A copy of this judgment be sent to the worthy Tribunal in terms of section 196(5) of the Act. MQ/81/P Reference dismissed.