2008 PLP 1394 (PTD)

ZIA-UD-DIN KHATTAK, J.

The staff of Police Station, Shergarh detained Toyota Land Cruiser Chassis No.LJ780014304, Engine No.2L-3878981, Model 1991 under sections 523/550, Cr.P.C. on suspicion of having involved in the commission of an offence. The occupant namely, Bachauddin, (hereinafter called as the petitioner) could not produce any document regarding legal import of the vehicle whereupon the police authorities sent the vehicle to FSL which could not detect any tampering with chassis frame thereof, as a result, the vehicle was handed over to the Customs Anti-Smuggling Unit, Mardan for further necessary action. As no documentary evidence of legal import was produced, therefore, the vehicle was seized under section 168 of the Customs Act, 1969 (hereinafter referred to as the Act) for violation of section 16 of the Act read with section 3(1) of the Imports and Exports (Control) Act, 1950. A show-cause notice was issued to the concerned and after hearing the parties, the Additional Collector, Customs Peshawar vide Order-in-Original Nos.666/671 of 2006 communicated on 20-12-2006 (whereby five other cases were also disposed of) confiscated the vehicle to the State. Bachauddin, petitioner went in appeal to the learned Collector of Customs (Appeals), Peshawar; in that he requested for release of the vehicle on payment of duty and taxes which find favour with the latter who vide order in Appeal No.91/2007, dated 10-4-2007 (communicated on 16-4-2007) ordered the release of the vehicle to its lawful owner on payment of redemption fine equal to 30% of Customs Value thereof, in .addition to duty and taxes leviable thereon in terms of S.R.O. 255(I)/2007, dated 17-3-2007. By the time the impugned order in anneal was communicated the Customs Department had already auctioned the vehicle on 11-4-2007 which offended the petitioner who filed this writ petition, under Article 199 of the Constitution of the Islamic Republic of Pakistan. It was, inter alia, pleaded that the vehicle was auctioned on 11-4-2007 in undue haste, a day after the impugned order in appeal and that no notice was given to the petitioner. The Customs Department denied the allegations and urged that a notice under section 201 of the Act was given to the petitioner through registered post vide C. No. 423, dated 27-12-2006. Mr. Zubair Shah, Assistant Collector Customs (Auctions)/ Respondent No.4 argued that the department is empowered to auction goods seized under the Act during the pendency of adjudication proceedings or appeals under section 169(4) of the Act. He submitted that the request of the petitioner to pay duty and taxes on the vehicle is itself an admission to the fact that the vehicle was smuggled one. Heard. Record perused. The only point argued before us on behalf of the petitioner was regarding violation of the impugned order in appeal, dated 10-4-2007 (whereby the vehicle was ordered to be released on payment of redemption fine, in addition to duty and taxes leviable thereon). Undoubtedly, subsection (4) of section 169 of the Act, does authorize the sale/auction of the seized goods that include vehicles even prior to the conclusion of the adjudicating proceedings. However, the procedure for the sale/auction of goods is provided under section 201 of the Act, which states that goods shall he sold after due notice to the owner by public auction or by tender or by private offer or with the consent of the owner in writing in any other manner. Thus, goods seized under the Act can be sold under subsection (4) of section 169 but only after due notice to the owner, who is even given the right to make proposal of the manner in which the goods may be sold. Coming to the facts of the present case, the vehicle was seized vide Case No.78/2006, dated 26-9-2006. The learned Collector of Customs (Appeals), Peshawar ordered for release of the vehicle on payment of 30% redemption fine, in addition to leviable duty and taxes vide Order-in-Appeal No.91 of 2007 communicated on 16-4-2007 under section 215 of the Act vide C.No.CUS-54/2007/501, dated 16-4-2007 i.e. five (5) days after the auction that Held on 11-4-2007. We have gone through the record and find that a notice (Annex-A) was given to the owner, petitioner herein under section 201 Customs Act, 1969, on 27-12-2006 regarding sale/auction of the vehicle. Thus, the department cannot be held to have violated any provisions of the Act or impugned order in appeal by selling/auctioning the vehicle. In this view of the matter; the writ petition being devoid of merit is dismissed in limine. However, as the learned Collector of Customs (Appeals), Peshawar allowed the petitioner to redeem the vehicle on payment of redemption fine, in addition to duty and taxes leviable thereon vide impugned order in Appeal No. 91 of 2007, dated 16-4-2007 therefore, the petitioner/owner is entitled to receive the sale proceeds from the department in accordance with law. H.B.T./54/P Petition dismissed.