2002 PLP 1438 (MLD)

S.M. KAZMI, MEMBER (TECHNICAL). ‑‑‑This judgment disposes of the appeal filed by Kamil Khan son of Thai of North Waziristan Agency against the Order‑in‑Original No.12‑18/2002 dated 17‑1‑2002 (despatched on 19‑1‑2002) passed by the Deputy Collector of Customs (Adjudication), F.C. Headquarters, Peshawar. 2. Briefly, the facts of the case are that during the course of anti‑smuggling duties at Damli Check Post on 14-9‑2001 at about 10‑00 hours, the F.C. Troops of Mashal Rifles stopped a Toyota Pickup Single Cabin Vehicle 1993‑Model (having Engine No.2L‑3343374 and Chassis No.LN85‑0121365) while it was coming from Miranshah side on way to Razmak. When the owner/occupant of the vehicle Kamil Khan son of Thai (stated as Qismat Khan son of Sher Jan) failed to produce any evidence of lawful import and/or duty payment, the troops seized the said vehicle for violation of sections 2(s) and 16 of the Customs Act, 1969 read with section 3(1) of the Imports and Exports (Control) Act, 1950. The Deputy Collector (Adjudication) issued a Notice No.DC/FC/1393/2001/3172 dated 5‑11‑2001 requiring the accused Kamil Khan (Qismat Khan) to show cause whey penal action and confiscation action under clauses (8), (89) and (90) of section 156(1) of the Customs Act, 1969 read with section 3(3) of the Imports and Exports (Control) Act, 1950, should not be taken against him and the vehicle. Having heard the counsel of the accused, 'the Deputy Collector found the offence. to be established and, vide the impugned order, he ordered outright confiscation (i.e. without option to the owner to pay fine in lieu of confiscation in terms of section 181 of the Customs Act, 1969 of the said vehicle under clauses (8), (89) and (90) . of section 156(1) of the Customs Act, 1969. Hence this appeal. 3. During the course of hearing before us, the learned counsel for the appellant argued that the learned Adjudicating Officer had denied the appellant his right of ownership and possession of the vehicle by not allowing him the option to pay fine, to be imposed by the said Adjudicating Officer, in lieu of confiscation of the vehicle in terms of section 181 of the Customs Act, 1969. He stated that probably this is due to the 'provisions of the first proviso to the said section 181 read with S.R.O. 1374(1)/98 dated 17‑1.2‑1998. He, however, maintained that the said Notification No.S.R.O. 1374(1)/98 dated 17‑12‑1998 is a sub ordinate legislation and is riot binding upon the Appellate Tribunal while disposing of the appeals under sections 194, 194‑A, 194‑B and 194‑C of the Customs Act, 1969, on the ground that (i) firstly, the Appellate Tribunal is not covered by the term "Adjudicating Authority" under section 2(a) of the Customs Act, 1969, and imposition of penalty and confiscation of goods are "adjudication" functions under section 179 of the said Act where the Tribunal has not been given any power under the said section 179; (ii) secondly, the directions contained in section 181 of the said Act are directed to the (adjudicating) officer passing order of the confiscation of goods. These directions and limitations, under the provisos to the said section, are not meant for the Tribunal being not an Adjudicating Authority; and (iii) thirdly, the provisions of section 194‑B of the Act are later in time and also later in sequence as compared to provisions of the provisos to section 181 because the provisions of section 194‑B were enacted in 1995 while those of the proviso to section 18,1 were enacted in 1992. Therefore, the Legislature's direction given to the Tribunal, under section 194‑B(1) to pass such order "as it thinks fit, confirming, modifying or annulling the decision or the order appealed against" has an overriding effect over the directions given under the provisos to section 181 of the said Act. They, therefore, concluded that the Tribunal should dispense justice under section 194‑B of the Act, and decide the appeal without feeling deterred or disabled by the provisions of the provisos to section 181 of the Act or by S.R.0.1374(I)/98 dated 17‑12‑1998. They further claimed that S.R.O.1374(I)98 dated 17‑12‑1998 does not apply to "vehicles" by virtue of Sr. No.4 of Table III to the said notification. They also argued that while the Customs Act, 1969, has been extended to the Tribal Areas of Pakistan, the implementation of this extension has been held in abeyance and, therefore, the seizure of the vehicle by the F.C. Troops inside the Tribal Areas is not lawful. They stated that the appellant is prepared to pay duty and taxes and prayed that the vehicle may be released accordingly. 4. The learned Departmental Representative stated that the vehicle is a smuggled one and its outright confiscation is lawful and proper in terms of the first proviso to section 181, of the Customs Act, 1969, read with S.R.O. 1374(I)/98 dated 17‑12‑1998. 5. Having heard the parties and on perusal of the record of the case, we find that the provisions of section 194‑B of the Customs Act, 1969, are not later in time as against the provisions of the provisos to section 181 thereof because section 194‑B was added by the Finance Act, 1989, while the provisos to section 181 were added by the Finance Act, 1992. There is no doubt that enforcement of the provisions of section 194‑B were made effective on 30‑3‑1995 in terms of S.R.O. 842(I)/95 dated 24‑8‑1995 issued under section 1(3) of the Finance Act, 1989, but the fact still remains that, irrespective of its date of enforcement, it is earlier in time as compared to the provisos to section 181 in terms of legislation. There is no doubt that section 194‑B is later in sequence as compared to section 181 but that cannot be construed to nullify the provisions of the provisos to section 181 of the Act. Under section 194‑B(1), the Tribunal is empowered to pass an order "as it thinks fit" but that is qualified to the extent of "confirming, A modifying or annulling the decision or order appealed against" besides the power to remand the case for fresh adjudication. The existence of section 194‑B(1) does not make the provisions of the provisos to section 181 redundant as both the provisions are not inconsistent with each other. We, therefore, find no force in the argument of the learned counsel that provisions of section 194‑B(1) of the Customs Act; 1969, override the provisions of the provisos to section 181 thereof. 6. While we agree that the Appellate Tribunal is not covered by term "Adjudicating Authority" as defined under section 2(a) of the Customs Act, 1969, the fact remains that it is an Appellate Authority for the cases decided in terms of section 179 of the Customs Act, 1969. While deciding the appeals, it has to look into the legality and propriety of the order appealed against and then pass an order as it may think fit, confirming, modifying or annulling such an order (under appeal). It has to see whether the order of outright confiscation (without option to pay fine in lieu of confiscation in terms of the first proviso to section 181 of the Customs Act, 1969), was a lawful, and proper order and also whether S.R.0.13740)/98 dated 17‑12‑1998, applied to such a case (now under appeals), was really applicable in that case. As regards the Notification No.S.R.o.1374(1)98, dated 17‑12‑1998 it has been issued in terms of the provisos to section 181 of the Customs Act, 1969, and, therefore, such an authorized subordinate legislation, when made and notified, is to be read as a part of the Act itself it is not inconsistent with the Act. We find that SRO 1374(1)/98 dated 17‑12‑1998 is in accordance with provisions of the provisos to section 181 of the Act and is, therefore, to be read as a part of the said section 181. This Appellate Tribunal, also created under the said Act, while deciding the case under appeal, cannot be expected to enforce the provisions of section 181 of the Act while simultaneously, ignoring its provisos and the subordinate legislation in the shape of S.R.0.1374(I)98, dated 17‑12‑1998 only on the ground that it is not an Adjudicating Authority under section 2(a) or under section 179 of the Act. Such a partial enforcement of the provisions of a particular section (section 181 in his case) by the Tribunal, as pleaded by the learned counsel for the appellant, is not a correct appreciation of law and practices. It has been held by the Honourable Lahore High Court in its judgment dated 16‑10‑2001 in C.A. No.4 of 1998 (PTCL 2002 CL 92) that‑.‑‑ "An order issued by C.B.R. under section 181 is binding upon the appropriate Officer directing confiscation of goods. It is binding both when it specifies the goods when such option is not to be given as also when it fixes the amount of fine which in lieu of confiscation is to be imposed. The Tribunal could not directly or indirectly allow a relief which the appropriate officer could not give to an assessee. The provisos to section 181 allow discretion' to the executive limb of the State in order to regulate the system in the perspective of the financial or social requirements of the people .of the country. The order so made portrays the policy of the State and, therefore, neither the departmental officer nor the Tribunal could deviate from it. This Court in its appellate jurisdiction under section 196 of the Customs Act, 1969, will also not allow a relief which the original officer could not grant in view of any provisions of the Act. Although the appellate jurisdiction of the Tribunal under section 194 has been couched in all embracing terms and words, nevertheless, being a creature of statute it cannot travel beyond the statute to discard, directly or indirectly, any of the provisions to be illegal or inapplicable where these are clearly attracted." 7. As regards the issue of non‑applicability of the Notification No S.R.O.1374(I)98, dated 17‑12‑1998 to cases of `vehicle" as pleaded by the learned counsel of the appellant, we find that such an argument is based on misreading of the provisions of law and the' said notification. " Vehicles of Chapter 87 of the First Schedule to the Customs Act, 1969, excluding non‑motorized vehicle" is a notified item under clause (ii) of section 2(s) of the Customs Act, 1969, read with Serial No:34 of the Notification S.R.O.491(I)/85, dated 23‑5‑1985. The vehicle, in this case under appeal. is a vehicle of Chapter 87 of the First Schedule to the Act and is a motorized vehicle and, is also valued at more than Rs.50,000, and, therefore, is covered by the common terminology "notified item" for the purposes of section 2(s)(ii) of the Act. Moreover, the owner of the vehicle has not been able to produce any document (e.g. customs bill of entry under section 79 of the Customs Act, 1969, or an I.G.M. under section 43 or section 44 of the said Act) to show the legality of its import through an authorized customs route. This, therefore, also attracts clause (iii) of section 2(s) of the Customs Act, 1969. The nature and gravity of the offence is not diminished by the appellant's offer, post‑seizure, to pay duty and taxes. Resultantly, this vehicle is a smuggled one and attracts the provisions of Serial No.1 of Table I read with clause (a) of the S.R.O. 1374(I)/98, dated 17‑12‑1998. As regards appellant's claim of benefit of the exclusion mentioned for Serial No.4 of Table‑III, the said Serial No.4 of Table‑III applies to such vehicles for which customs duties are paid by 15‑3‑2000. The appellant's vehicle, in this case under appeal, did not pay duty by 15‑3‑2000 and has rather not paid duty uptil now. Therefore, we hold that the benefits of Sr.No.4 of Table‑III of S.R.O.1374(I)/98, dated 17‑12‑1998 are not available to the appellant's case. We also hold that, for reasons aforesaid, the vehicle involved in this appeal, attracts the first proviso to section 181 of the Customs Act, . 1969, read with Serial No.1 of Table I of S.R.O.1374(I)/98, dated 17‑12-1998 under clause (a) thereof. 8. As regards legality of seizure by the F.C. Troops of Mashal' Rifles in Tribal Areas, the law of Customs Act, 1969 (IV of 1969), admittedly, has been extended to apply to FATA in terms of Regulation No.1 of 1984 issued under Notification No.F.5(1) F.III/ 82/Vo1.III dated 7‑1‑1984 and also to the PATA of N.‑W.F.P. vide Serial No.1l of the Schedule to the Regulation No.III of 19751 issued under Notification No.F.1(6)‑Sec.III/72 dated 22‑7‑1975. The learned counsel for the appellant has claimed that the implementation of the aforesaid instrument has been held in abeyance but he has not produced/cited any document, authority or notification to support his claim. In the absence of any such notification of Regulation cancelling, rescinding, or holding in abeyance the aforesaid Regulations, the Frontier Corps Troops are authorized, in terms of Notification NO.S.R.O.1017(I)/74, dated 26‑7‑1974, to exercise powers of the customs officers to the extent specified in the said notification. Accordingly., we do not agree with the learned counsel for the appellant that the seizure by Frontier Corps Troops of Mashal Rifles was unlawful. 9. For the reasons given in the foregoing paragraphs 5 to 8, and also in view of the Honourable Lahore High Court's judgment dated 16‑10‑2001 passed in C.A. No.4 of 1998 (2002 MLD 296) and the Lahore Bench of this Tribunal's judgment dated 22‑10‑2002 in Appeal No.297/LB of 2001, we have no doubt in our mind that the outright confiscation (without option to the owner to pay fine in lieu of confiscation in terms of section 181 of the Customs Act, 1969) of the appellant's vehicle in this case (under appeal) was lawful and proper under clauses (8) and (89) of section 156(1) of the Customs Act, 1969, read with Serial No.1 of Table I of S.R.O. 1374(I)/98, dated, 17‑12‑1998 and clause (a) thereof. The impugned order is confirmed to this extent and the appeal is disposed of accordingly as dismissed. 10. Inform all concerned. 11. Announced. C.M.A./325/Tax(Trib.) Appeal dismissed.