Appeal No. 1 of 2001, decided on 18th April, 2001. VS Appeal No. 1 of 2001, decided on 18th April, 2001., 2003 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 199 (2001)

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 15, 16 & 194‑A‑‑‑Antiquities Act (VII of 1975), S.2(c), 24 & 26‑‑‑Illegal export of sculpture in stucco and stone alleged to be counterfeit of Ghandhara sculpture‑‑‑Respondent confiscated such goods for contravention of Ss. 15 & 16 of Customs Act, 1969 and Ss. 24 & 26 of Antiquities Act, 1975‑‑‑Validity‑‑‑Product should be an antiquity for prohibition of an export under S.2(c) of Antiquities Act, 1975‑‑‑Term "antiquity" connotes "ancientness"‑‑‑Word "ancient" means "of time long past" or `at least 75 years old"‑‑‑Goods in dispute were admittedly of recent and modern vintage and had been declared so‑‑‑Goods in dispute were not an antique as same had been termed as "counterfeit" goods by Archaeology Department‑‑‑Provisions of S.26(2) of Antiquities Act, 1975 were not applicable to the present case as goods in dispute were not prohibited under S.26(1) of Antiquities Act 1972, which specifically prohibited export of an antique and not 'otherwise‑‑‑Customs Authorities could take action, where goods were prohibited for export due to conditions laid down in S.26(1) of Antiquities Act, 1975, whereas facts of the present case did not correspond to a situation described therein‑‑‑Except report of Archaeology Department, there was no other evidence to corroborate the fact that there was deception through resemblance; and there was an intention to deceive‑‑‑Appellant had never made an attempt to export an antique, thus, there was no offence under S.26 of Antiquities Act, 1975‑‑‑No action of deception had been attributed to appellant nor any intention to defraud someone had been shown by respondent‑‑‑Provisions of S.24 of Antiquities Act, 1975, thus, were not applicable‑‑‑Tribunal declared impugned order as illegal and without jurisdiction; and directed respondent to decide appellant's application for export afresh, whereas Competent Authority under Antiquities Act, 1975 would be at liberty to pursue their independent right within framework of S.24 of Antiquities Act, 1975 before an appropriate Court of law.

(b) Penal, Code (XLV of 1860)‑‑‑

‑‑‑‑S. 28‑‑‑Counterfeit, offence of‑‑‑Prerequisite conditions for such offence stated.

An offence within the meaning of section 28 of Penal Code, 1860, takes place when two pre‑requisite conditions concur, namely, (1) that accused had caused one thing to resemble another thing, both could be either same or of similar description, and (2) that accused had intended by that resemblance to practice deception or was saddled with knowledge that there was likelihood that deception would occur.

PLD 1969 Kar. 245 ref.

Siraj‑ul‑Haq for Appellant.

Aijaz for Respondent.

ORDER

ZAFAR IQBAL, MEMBER (TECHNICAL). ‑‑‑This appeal has been preferred against the order passed by the Collector of Customs, Adjudication‑II, Karachi, bearing No.63 of 2000, dated 12‑11‑2000.

2. The facts of the case are that the appellant filed a Bill of export No.15215, dated 16‑9‑2000 through their clearing agent Messrs Olympic Agencies, Karachi (CHAL 866) for the export of Wooden Furniture, Kitchen Accessories and Stucco decor pieces to Russia. The scrutiny of the documents presented to the Customs Authorities revealed that the export consignment contains replicas of Ghandhara Art. The goods, were being exported to Moscow. In order to confirm the genuineness of the declaration, the Department of Archaeology was requested to examine replicas so as to confirm the declaration of the appellant. The consignment was examined by the department of Archaeology, who reported that the material being sent to Russia do fall within the purview of section 24 of the Antiquities Act, 1975. The said department accordingly ruled that the export of replicas was not permissible.

3. The consignee challenged the report of the said department and requested for a re‑examination of goods. The request was allowed and the consignment was re‑examined by the Advisory Committee of the Department of Archaeology. The Committee also confirmed the earlier report of the Archaeology Department and categorically decided that the export cannot be allowed on the ground that sculpture in stucco and stone are a direct counterfeit of Ghandhara sculpture.

4. In view of the Committee's report the Customs Department issued a show‑cause notice to the appellant whereby he was asked to justify his action of making an illegal export. The case was heard and decided by the Collector of Customs (Adjudication‑II), Karachi, who held that contravention of sections 15 and 16 of the Customs Act, 1969, did take place. He accordingly confiscated the goods and in addition a personal penalty of Rs.2,00,000 was also imposed against the appellant.

5. Being aggrieved by the said order the present appeal has been filed. The learned counsel who appeared on behalf of the appellant inter alia contended that:‑‑

(a) the appellant intended to establish an avant‑garde restaurant in Moscow and in order to attract the rich and the famous people of Moscow the restaurant stood named as Ghandhara. Their aim, was to project Pakistan's cultural heritage;

(b) section 24 of the Antiquities Act, even if applicable, is irrelevant for the purposes of section 15 or 16 of the Customs Act, 1969. In fact it is only section 26 of the said Act under which section 16 of the Customs Act has been made applicable;

(c) section 24 is not a section for prohibiting export under section 16 of the Customs Act but it is merely a penalizing section and the matter is to be decided by a Court of law. And for that the product should be an antiquity which connotes Ancientness. The word "ancient" means "of time long past or at least 75 years old", whereas the pieces under dispute are, admittedly of recent and modern vintage and have been declared so. Since these pieces do not come within the purview of prohibitory provisions of section 26 of the Antiquities Act for invoking section 16 of the Customs Act, and since there is no prohibition for export under section 24 of the Antiquities Act, 1975. The cognizance by the Customs Authorities under section 16 of the Customs Act is entirely without jurisdiction.

6. Now, the question before this forum is that whether or not in the circumstances of the case the provisions of section 26 of the Antiquities Act, 1975 are applicable? To appraise the above issue, it may be appropriate to reproduce section 26 of the Antiquities Act, 1975, which reads as under:‑‑

"26. Export of antiquities.‑‑‑(1) No person shall export any antiquity except under a licence to be granted by the Director‑General:

(a) for the temporary export of antiquities for the purpose of exhibition, examination or treatment of preservation; or

(b) in accordance with agreements with foreign licences for archaeological exploration and excavations within the term of their licenses; or

(c) for the export of antiquities which are not of a unique nature in exchange for antiquities of any foreign country.

(2) All antiquities the export of which is prohibited under sub section (1) shall be deemed to be goods of which the export has been prohibited under section 16 of the Customs Act, 1969 (IV of 1969), and all the provisions of that Act shall have effect accordingly, except that the antiquity in respect of which the provisions of that Act have been contravened shall be confiscated where confiscation is authorized under that Act."

7. It will be noticed that subsection (2) of section 26 specifically mentions the prohibition under section 16 of the Customs Act, 1969. The prohibition under section 26 is also in respect of "an antiquity". The term "antiquity" has been defined in clause (c) of section 2 of the Antiquities Act, 1975 which is reproduced below:‑‑

(c) "antiquity" means:

(i) Any ancient product of human activity, movable or immovable, illustrative of art, architecture, craft, custom, literature, morals, politics, religion, warfare or science or of any aspect of civilization or culture;

(ii) any ancient object or site of historical, ethnographical, anthropological, military or scientific interest;

(iii) any national monument; and

(iv) any other object or class of such objects declared by the Federal Government, by notification in the Official Gazette, to be an antiquity for the purposes of this Act.

8. So for prohibition of an export under the aforementioned section, the product should be an antiquity. The said term connotes Ancientness. The word "ancient" means of times long past "or at least of 75 years old", whereas the pieces under dispute are, admittedly, of recent and modern vintage and have been declared so.

9. It may further be noticed that provisions of subsection (2) of section 26 specifically provides that all antiquities the export of which is prohibited under subsection (1) shall be deemed to be goods of which the export has been prohibited under section 16 of the Customs Act, 1969. The provision of subsection (1) of section 26 prohibit the export of an antiquity and not otherwise.

10. In the present case the admitted facts are that the goods under dispute are not an antiquity. These goods have been termed as counterfeit goods by the Archaeology Department. Be that as it may, the provisions of subsection (2) of section 26 of the Antiquities Act, 1975 are not applicable in this case as the goods in question are not prohibited under subsection (1) of section 26 as the said section specifically prohibits export of an antiquity and not otherwise. Hence the action taken by the Customs Authorities within the framework of section 26 is not legal. The Customs Authorities did base their decision solely on one ground that goods do contravene the provision of section 24 of the Antiquities Act. 1975, therefore, the provisions of section 26 of the said Act, ipso facto become applicable in this case. But that is not the correct legal position, the Customs Authorities can take action where the goods are prohibited for export due to the conditions laid down in subsection (1) of section 26. The facts of the present case do not correspond to a situation described in subsection (1) of section 26 of the Antiquities Act, 1975. Hence the order passed by the Customs Authorities was not judicious.

11. The second issue in this case is with regard to determination of the fact, whether or not the goods are counterfeit so as to attract the mischief of section 24 of the Antiquities Act, 1975. To appreciate the above contention, it may be appropriate to reproduce section 24 of the Antiquities Act, 1975, which reads as under:‑‑

"24. Penalty for counterfeiting etc. of antiquity.‑‑‑(1) Whoever counterfeits, or commits forgery in respect of any antiquity with intent to commit fraud or knowing it to be likely that fraud will thereby be committed, or causes anything to appear like, or to be believed to be, and antiquity with intent to cause wrongful gain to one person or wrongful loss to another person, shall be punishable with imprisonment for a term which‑bay extend to six months or with fine, or with both.

(2) The Court trying an offence under subsection (1) may direct that anything the making or forging of which has constituted such offence shall stand forfeited to the Federal Government."

12. In this regard the report of the Archaeology Department is the only relevant evidence. This report states that the goods under dispute are not an antiquity but the same are counterfeit goods. The report further passed a judgment that the goods do contravene the provisions of section 24 of the said Act. In order to further examine this point, it will be appropriate to go through the report given by the Advisory Committee of the Department of Archaeology on 7‑10‑2000 the same is reproduced below:‑‑

"(b) The Committee thoroughly examined all the sculptures and noticed that the sculptures in stucco and stone are a direct counterfeit of Ghandhara Sculptures and were deliberately left unpolished to make way to get them through customs for shipment. The Committee further noticed that not only the theme of Ghandhara Sculptures but also the same material (schist stone) was used for stone sculptures‑

(c) The Committee unanimously agreed that the said pieces of sculptures come under the purview of section 24 of the Antiquities Act, 1975, and therefore, cannot be allowed for export. "

13. The Committee termed the goods in question as counterfeit of Ghandhara Sculptures. This conclusion was arrived at on the grounds that appellant used same material and theme for the sculptures. The word "counterfeit" is very significant, and this word is defined in section 28 of the Pakistan Penal Code as follows:‑‑

" .... A person is said to counterfeit, who causes one thing to resemble another thing intending by means of that resembleness to practice deception or knowing it to be likely deception will thereby be practiced..."

14. It will be plain from the language of the section that intention to "practice deception" by causing one thing to resemble another is a necessary ingredient of counterfeit and, therefore, mens rea is a condition precedent of the offence under that section.

15. We now examine section 24 of the Antiquity Act, 1975. It will be noticed that under subsection (1) the prohibition is in regard to a counterfeit or forged antiquity and that too for the intent to commit, (a) fraud; (b) knowing it to be likely that fraud thereby will be committed; (c) causing anything to appear like; d) and making something so as to believe it to be an antiquity. And in order to complete the offence there must be an intention to cause wrongful gain to one person or wrongful loss to another person.

16. In the present case except the report of the Archaeology Department, there is no other evidence to corroborate the fact that:

(i) There was deception through resemblance.

(ii) There was an intention to deceive.

17. The learned counsel appearing on behalf of the appellant untended that the report on the basis of which whole action has been taken does not state that the appellant did deceive someone or intended to receive someone and that there was an intention of wrongful, loss or gain. He relied upon a Judgment of the 'Karachi High court reported as PLD 1969 Kar. 245 wherein their lordships have held that, an offence within the meaning of section 28 of the Penal Code takes place when two prerequisite conditions concur, namely, (1) that the accused had caused one thing to resemble another thing both things could be either same or of similar description, (2) that the accused had intended by that resemblance to practice deception or is saddled with the knowledge that there is likelihood that deception Would occur.

18. In the present case circumstances are quite different. The appellant never made an attempt to export an antiquity, hence there was no offence under section 26 of the said Act. There was no act of deception attributed to appellant nor any intention to defraud someone was shown by the respondent. Hence the provisions of section 24 are not attractable in this case.

19. Be that as it may, it is ordered that:‑

(a) The orders of the Customs Authorities of confiscation of goods and of imposing penalty are illegal and without jurisdiction.

(b) As regards the appellant's application for export, the same will be decided afresh in the light of these orders and after providing a fair opportunity both to appellant and to the competent Authority under the Antiquities Act, 1975.

(c) The competent Authority under the Antiquities Act, 1975 will be at liberty to peruse their independent right within the framework of section 24 before an appropriate Court of law ,if they still feel that an infringement of section 24 of the Antiquities Act. 1975 has taken place.

S.A.K./517(Trib.) Order accordingly.