2005 PLP (Trib (PTD)

(vii) That the learned Adjudicating Authority allowed redemption impugned goods against fine without any lawful authority. The impugned goods could not be redeemed being on the negative list. Reliance is placed on a joint judgment No. 7 (68, 80, 81, 83, 84, 92, 103), dated 3‑4‑2003 passed by the Honourable Appellate Tribunal, Islamabad in appeals filed by Messrs Remanullah etc.; in which it was held "I therefore, dispose of the appeals in the manner that the respondent department is directed to compare the seized goods in with the description of goods given in the Table of S. R. O.‑ 1374(1)/98, dated 17‑12‑1998. Only those seized, goods ‑which are not on the notified list and are freely importable and are also not mentioned in the S.R.O. ibid should be released on payment of duty and taxes without payment of fine/penalty and with regard to remaining confiscated goods the appeals shall stand dismissed." It was prayed that the impugned order‑in‑original may be modified to the extent that redemption of the impugned goods may not be allowed in lieu of the fine or the leviable customs duty and taxes.

8. On the other band, the respondents argued as under:‑‑ (i) That the seized goods were imported through the notified Customs Station and their clearance was sought by filing proper Bill of Entry. (ii) That the Imports and Exports (Control) Act, 1950 has not been extended to the Northern Areas and as such the Import Policy and the import restrictions‑ issued thereunder are not applicable in this case. (iii) That no prohibition in respect of the seized goods has been notified under section 16 of ‑the Customs Act, 1969. (iv) That mixing of the seized goods with other goods was not possible in view of their quantity. (v) That the Importer is still ready to pay customs duty and other taxes on the seized goods. (vi) That the show‑cause notice is time‑barred and as such it is not enforceable. The seized goods are liable to be returned unconditionally under section 168(2) of the Customs Act, 1969. (vii) That the seized goods have been imported in job lot and stock lot quantity. In view of the above the counsel for the respondent prayed that the appeal may be dismissed. ,

9. We have gone through the records of the case and the arguments of the appellants and the respondents. The following 3 points need consideration and adjudication:‑‑‑ (i) Whether the show‑cause notice was time‑barred and, therefore, the goods are liable to be released under section 168(2) of the Customs Act, 1969? (ii) Whether the goods are banned under Appendix "A" of the Import Policy Order, 2000 issued vide S.R.O. 489(1)/2000, dated 17‑7‑2000? (iii) Whether the goods in question were being smuggled because the same are ‑mentioned in the S.R.O. issued under section 2{s) of the Customs Act, 1969?

10. The position with regard to the above points is as under:‑‑ (i) In this case the goods were seized by the Customs formally on 5‑10‑2002 whereas the show‑cause ‑notice was issued on 16‑12‑2002 i.e. after 2 months and 11 days. No ‑extension appears to have been accorded to the issuance of the show‑cause notice after the statutory period of 2 months. In ‑view‑ of the same the show‑cause notice was time‑barred and, therefore, the goods are liable to be released to the appellants. (ii) The goods in this case are second‑hand VCRs and VCPs. The same are banned for import under Appendix "C" of the Import Policy Order, 2000, referred above, therefore; these are not covered by S.R.O. 1374(1)/1998 or S.R.O. 374(Ij/2002. However, both the S.R.Os apply in this case on the basis of the same being banned for import but these are not liable to outright confiscation. This outright confiscation applies only to items covered under Appendix "A" of the Import Policy Order, 2000, mentioned above. Therefore, the goods can be released on payment of duties and taxes and on payment of redemption fine to be determined by the Adjudication Officer. (iii) The appellants have held that the goods are smuggled because these are notified under notification issued under section 2(s) of the Customs Act, 1969, and are banned for import under the Import Policy Order, 2000. The ‑word "smuggle" has been defined under the Customs Act, 1969, as under:‑‑ 2(s) "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,‑‑ (i) gold bullion, silver bullion, platinum, palladium,' radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances; or , (ii) manufacturers of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the official Gazette, which, in each case, exceed (fifty thousand rupees) in value; or (iii) any goods by any route other than a rout declared under section 9 or 10 or from any place other than a customs- station. And includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly." Obviously, goods brought through a route other than a rout declared under section 9 or 10 or from any place other than a Customs Station, will be considered as being smuggled. If any goods are being brought into the country through the notified route and a notified Customs Station, these will not be treated as smuggled simply because these are banned for import. Inclusion of an item in the notification issued under section 2(s) of the Customs Act, 1969, does not make an item as smuggled because the notification includes a large number of freely importable items. Secondly, second‑hand VCRs and VCPs are not mentioned specifically in the notification. In view of the same the goods cannot be treated as being smuggled as these were imported through a notified Customs Station i.e. Sost.

11. The upshot of the above discussion is that the goods are ordered to be released on payment of duties and taxes only, as the show‑cause notice is time‑barred. The orders of confiscation are also set aside because of the above and the fact that these goods cannot be treated as smuggled. The appeal of the Customs Department is dismissed.

12. Ordered accordingly.

13. Announced. C.M.A./325/Tax (Trib.) Appeal dismissed.