2003 PLP (Trib (PTD)

MIAN ABDUL QAYYUM, MEMBER (JUDICIAL).

This appeal is directed against the Order-in-Original No.24 of 2001, dated 6-1-2001 (dispatched on 10-1-2001) passed by the learned Deputy Collector (Adjudication), Multan whereby the following items stated in para. 1 of the impugned order recovered from the appellants on' 26-9-2000 were confiscated:-- "(i) 67 x. Btls. Liquor Indian. (ii) 1 x Kalashnikov (44 bore) (iii) with 1 x Mag. (iv) 4 x live rounds. (v) 1 x .12 bore double barrel gun. "

2. All the appellants were also booked .in a case under section 156(i), 8, 89 & 178 of the Customs Act, 1969, Articles 3/4 of the Prohibition of Hadd Order, section 4 of Ordinance, 55 of 1952 and section 13 of Ordinance XX of 1965 vide F.I.R. No. 214, dated 27-9-2000 at Police Station Mandi Sadiq Ganj, District Bahawal Nagar.

3. The accused (all the appellants) faced the trial for offences under section 156(1), 8/ 179 of the Customs Act, 1969 and have since been acquitted by the learned Special Judge, Customs, Lahore vide judgment, dated 23-5-2001.

4. Meanwhile the learned Adjudicating Officer took up the case and ordered confiscation of the goods through the impugned order holding that no one had appeared on behalf of the appellants and no written statements was filed by them although hearing in the case was fixed on 14-12-2000 and on 5-1-2001.

5. The learned counsel for the appellant submitted that the appellants were in District Jail Bahawal Nagar in connection with F.I.R. No.214 of 2000, dated 26-9-2000 and that since he himself was pursuing their case, therefore, he had submitted an application to the Superintendent District Jail Bahawal Nagar (copy at page 47) requesting therein that the application for stay and affidavit in support of the stay application may, be attested after obtaining thumb-impression of Taj Din one of the appellants and the power of attorney may be attested after obtaining thumb-impression of all the appellants and that the Superintendent attested these documents on 23/24-5-2001 but the documents were delivered to him on 26-3-2001, whereafter the appeal as instituted on 9-4-2001 which may be treated to be within time after condoning the delay.

6. Learned counsel for the appellant requested that since the appellants were in jail, therefore, the notice of hearing issued by the learned Adjudicating Officer for 14-12-2000 and 5-1-2001 were not received by them and that the impugned order being ex parte may be set aside and the case may be remitted to the learned Adjudicating Officer for a fresh decision in accordance with law.

7. Learned D.R. has opposed this appeal.

8. The appeal was reported to be barred by time by the Assistant Registrar. An application seeking condonation of delay is available at page 43-45 of the appeal file. Keeping in view the contents of the application, the appellant was admitted to regular hearing on 12-4-2001 subject to the all just and legal exceptions on the point of limitation. The learned D.R. on 8-10-2001 sought an adjournment to place on record some documents to show the date of receipt of the impugned order, by the appellant, in order to justify the objection that the appeal was barred by time but has failed to bring on record any such documents although the appeal was adjourned several times since 8-10-2001.

9. There is thus, nothing on record to rebut the claim by learned counsel for the appellants that they were in judicial lock-up from 26-9-2000 till. 23-5-2001, on which date they were acquitted by the learned Special Judge Customs, Lahore by extending them benefit of doubt and were checked to be released in case they were not required to be detained in any other case. The Superintendent attested power of attorney for filing the appeal before this Tribunal against the impugned order on 23-3-2001. The power of attorney bears thumb-impression or all the six appellants and is available at, page 51 of the appeal file. The Superintendent also attested the application for interim injunction as well as affidavit of Taj Din one of the appellants as was requested through an application addressed to him which is annexed at page 47 of the appeal file. This being the position, the notices of hearing claimed to have been issued by the learned Adjudicating Officer for 14-12-2000 and 5-1-2001 may not have been received by the appellants. In this background of facts the delay in filing the appeal is condoned and the same is held to be within time.

10. The fresh of the above discussion is that the appellants appear to have been condemned into and for the same reason, the impugned order is not sustainable in law: The same is set aside and the case is remitted to the learned Adjudicating Officer for a fresh decision in accordance with law after hearing the parties and after receiving the evidence which they may like to produce. C.M.A./745/Tax (Trib.) Appeal set aside.