2005 PLP (Trib (PTD)

This appeal challenges the vires of the impugned orders, dated 31-7-2002 passed by the Collector of Customs, Sales Tax and Central Excise Appeals, Quetta at Hyderabad and that of the Deputy Collector of Customs, Sales Tax and Central Excise Adjudication, Quetta at Hyderabad, dated 17-5-2002.

2. According to the facts available on record, it is claimed by the respondent that goods of Korean and Indonesian origin (cloth) were seized from the possession of appellant s representative. The appellant now claims that the said goods were of Pakistani origin.

3. A perusal of case record indicates that the first confiscation order was passed ex parte. The said order was set aside by this Tribunal, the second adjudication order was also passed ex parte and the said order has been confirmed by the first appellate forum. Both the orders are silent on the merits of the case. No evidence was produced by the seizing officer to establish the foreign origin of the seized goods. The Adjudication Officer simply confiscated the goods on assumed grounds. Whereas according to the factual position, goods have been seized far away from the borders and such types of goods (i.e., ordinary cloth) are freely available in the open market throughout the country. In order to confiscate someone s property, there did exist a responsibility on the part of quasi-judicial authorities to act in accordance with law. The act of smuggling or possession of smuggled goods must be proved beyond a reasonable doubt; but the facts of the present case indicate that there was an unnecessary haste to dispose of the matter and that too by not following the established norms. The Adjudication Officers are under a duty to examine that whether or not service of the summons, notices or call up letters were made in accordance with the requirements of section 215 of the Customs Act, 1969, and if a proper service has not been made, passing of an ex parte order was not warranted by law.

4. Even if the owner of the goods was absent on the date of hearing, before confiscation, the Adjudication Officer should have given a serious thought to the facts and circumstances, and available evidence should have been examined to deduce or infer a decision in respect of a vested right i.e., freely keeping one s property. Such an action infringes the legal norms where the rights of a citizen are being taken away in absence of evidence. Furthermore, where the investigation was not in a position to establish their charge, the benefit of doubt should have been given to the citizen.

5. The goods in this case have been auctioned without following the legal procedure and the appellant is being continuously denied the right of a fair trial. In these circumstances, the action of the respondent was ab initio wrong and not warranted by law.

6. All these facts clearly establish presence of impropriety in the proceedings conducted by the respondent. In order to meet the ends of justice, the impugned orders are hereby set aside as being ab initio wrong and not warranted by law. The case is remanded back to the Adjudication Officer for a decision afresh with the following directions:

(i) The Adjudication Officer should consider the evidence of both the parties and thereafter give a finding whether or not the seized goods were smuggled items? (ii) The Adjudication Officer should ensure that call up notices for the date of hearings are properly served on the parties. (iii) Both the parties are given a fair opportunity to put up their point of view. H.B.T./376/Tax (Trib.) Order accordingly.