Customs Act (IV of 1969)---

----Ss. 19, 26, 156(1)(12), 196 & 196-A---S.R.O. 279(I)/94, dated 2-4-1994---Supreme Court granted leave to appeal to consider whether petitioner was deprived of an opportunity of hearing and was condemned unheard by High Court; whether petitioner could be proceeded against for violation of provisions of S.R.O. 279(I)/94 after submission of certificate of installation from Assistant Collector, Central Excise; and whether penalty imposed on petitioner was disproportionate to offence allegedly committed by him.

Sayed Najmul Hassan Kazmi, Advocate Supreme Court Tanvir Ahmad, Advocate-on-Record for Petitioner.

Sh. Izhar-al-Haq, Advocate Supreme Court for Respondent.

Date of hearing: 2nd August, 2002.

ORDER

Petitioner-company seeks leave to appeal against Lahore High Court judgment in Custom Appeal No.48 of 1998 setting aside judgment of Customs Excise and Sales Tax Appellate Tribunal, Lahore Bench (hereinafter referred as the Tribunal); dated 9-7-1998 whereby petitioner's appeal against the order, dated 11-11-1997 of the Collector Customs, Multan was allowed.

2. In terms of S.R.O. 279(I)/94, dated 2-4-1994, Messrs Rousch (Pakistan) Power Ltd. imported machinery and equipment weighing 5557. 16 metric tons for their Power Plant at Abdul Hakeem, Sidhnai Barrage. Tehsil Kabirwala, District Khanewal vide bill of entry, dated 21-4-1997. In terms of the S.R.O, the import was exempt from payment of customs duty and in case of permanent importation, importer was required to submit a certificate of installation of machinery and equipment imported for the purpose during one year from the date of import from Assistant Collector or Deputy Collector of Central Excise in whose jurisdiction the project is located. It is the case of the petitioner that the petitioner actually consumed the entire machinery and equipment at the sanctioned project but according to the respondent, on 11-6-1997 Customs Authorities intercepted a vehicle of the petitioner containing 36 metric tons of imported steel bars at Khanewal Road, Multan. It is assertion of the respondent that petitioner-Company was shifting the material to another site namely Power Plant at Lal Pir, which was unauthorized as according to relevant S.R.O. machinery and equipment was required to be erected and installed at the sanctioned project. On seizure of the machinery and equipment, as stated above, the petitioner was charged on five counts but ultimately found guilty on two counts as under:--

"(1) Shifting of the seized 36 M.T. of steel bars from Abdul Hakeem to Lal Pir (para 17 of the O-in-O).

(IV) Transfer of 162 M.T. steel bars to other projects (para 25 of the O-in-O). "

3. In relation to charge at serial No. 1, petitioner was directed to pay redemption fine of Rs. 1,00,000 in addition to penalty of Rs. 1,00,000 while the seized vehicle was directed to be released on payment of Rs.50,000. On the second count penalty of Rs.5,00,000 was imposed on the petitioner while a sum of Rs.25,000 was imposed by way of penalty under section 26 read with section 156(1)(12) of the Customs Act, 1969 for non-production of record summoned during the course of inquiry. Petitioner's appeal before the Tribunal succeeded but in writ petition filed by the Customs authorities, a Division Bench of the Lahore High Court up-set the verdict of the Tribunal and maintained the order of Collector Customs.

4. After hearing learned counsel for the parties, we grant leave to consider inter alia, the following points:--

(i) Whether the petitioner was deprived of an opportunity of hearing and was condemned unheard by the High Court?

(ii) Whether the petitioner could be proceeded against for violation of the provisions of S.R.O. 279(I)/94, after submission of a certificate of installation, dated 30-9-1998 from the Assistant Collector, Central Excise, Multan?

(iii) Whether the penalty imposed on the petitioner was disproportionate to the offence allegedly committed by him.?

In view of involvement of public revenue appeal be listed after ~, vacations.

S.A.K./H-68/S Leave granted.