Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 181‑-‑Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000, R.3(4)‑‑‑General Clauses Act (X of 1897), S.21‑‑‑Principle of locus poenitentiae‑‑‑Executive notification, validity of‑‑‑Non-retrospective effect of amended notification‑‑‑Additional Collector Customs, in the light of an amended notification brought about under the first proviso of S. 181 of Customs Act, 1969, applying it retrospectively, to the act of the respondent, barred the Custom Authorities to give option to the respondent to pay fine in lieu of the confiscation of the imported vehicle, considering the import of vehicle to be in violation of R.3(4) of the Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000‑‑‑Appellate Tribunal set aside the order of the Additional Collector in appeal‑‑‑Held, that the right of respondent as provided under S.181 of Customs Act, 1969 to pay fine in lieu of confiscation could not be taken away arbitrarily, as under the principle of locus poenitantia where a Central Authority had provided a power to a department to issue executive notification, the Central Authority also had the power to add to, amend, vary or rescind any such notification‑‑ Executive notification, which is detrimental or prejudicial to the interest of a person, cannot operate retrospectively, however, a beneficial executive notification issued by an executive functionary can be given retrospective effect.

Elahi Cotton Mills Limited and. others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others PTCL 1997 CL 260 and Army Welfare Sugar Mills Limited and others v. Federation of Pakistan and others 1992 SCMR 1652 ref.

Ahmer Bilal Soofi for Appellant.

ORDER

This order shall dispose of Customs Appeal No. 168 of 2003 alongwith 333 connected Customs Appeals (Nos. 169 of 2003 to 470 of 2003 and Customs Appeals Nos. 476 of 2003 to 506 of 2003) as they are directed against the same judgment, dated 30‑7‑2003 vide which the learned Customs Excise and Sales Tax Appellate Tribunal, Lahore allowed respondents/imports appeals, set aside the order-in‑original and held as under:‑‑

" ....Hence orders of the Adjudicating Officer for outright confiscation are set aside. Upto 6‑6‑2003, clause (a) of S.R.O. 374(I)/2002, dated 15‑6‑2002 did not cover the vehicles in question. Hence in the light of our earlier judgment in Appeal No. 193‑LB of 2003 (titled Mr. Abdul Ghaffar) and applied to 253 others and judgment, dated 4‑6‑2003 in Appeal No. 546‑LB of 2003 (titled Shahid Hussain) and applied to 7 others, we order that the vehicle imported by each appellant shall be released to him on payment of 35% fine din lieu of confiscation and in addition to payment of duty/taxes under the law. 35% would mean equal to 35% of the assessed amount of duty and taxes which shall be worked out after allowing depreciation in terms of CGO No. 12 of 2002, dated 15‑6‑2002 Chapter‑IV."

2. Admitted facts are that the respondents were working aboard. On their return to Pakistan, they imported used/second hand vehicles under the Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000. They were refused the benefit of the afore‑referred rules by the Customs Department on the grounds that the vehicles in question were not registered in the names of the respective importers/respondents at least two years prior to their departure for Pakistan as required under sub‑rule (4) to rule 3 of the Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000. This was vide order dated 19‑6‑2003 passed by the Additional Collector of Customs, CFS, Thokar Niaz Baig, Lahore. This order was set aside vide the impugned consolidated judgment as learned Customs, Excise acid Sales Tax Appellate Tribunal's was of the view that since the Bills of Entries were filed prior to the amendment in law, therefore, the amendment could not have retrospective effect to deprive the respondents/importers of the benefit which they could avail under the law which existed when they filed the Bills of Entries.

3. Learned counsel for the appellants, in support of these Customs Appeals, submitted that the learned Customs, Excise and Sales Tax Appellate Tribunal, Lahore has wrongly decided the question of date of application of the amended law; that if the amended law was to be given effect from the date of filing of Bills of Entries even then the goods were liable to confiscation as those were smuggled items and were not entitled to the benefit of section 181 of the Customs Act. He further submitted that after the order dated 19‑6‑2003 passed by the Additional Collector Customs, the goods subject‑matter of these appeals stood confiscated in favour of the Customs Department and the learned Customs, Excise and Sales Tax Appellate Tribunal had no jurisdiction to release the goods by invoking the principle that the amended law could not have retrospective application.

4. Heard.

5. The vehicles subject‑matter of these appeals were imported by the respondents under the Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000 rule 3 of which lays down the eligibility criteria and sub‑clause (4) of which, inter alia, stipulates as under:‑‑

"(4) In the case of personal' baggage imports vehicles must be registered in the name of the applicant at least sixty days prior to his departure for Pakistan and in case of transfer of residence at least two years prior to his departure for Pakistan."

6. During verification of their Bills of Entries and other documents it was found that there was violation of sub‑rule (4) of rule 3 to Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000 as the vehicles in question had not been registered in the name of their respective importers/respondents within the period stipulated in the afore‑referred provision. Thus in terms of the order‑in‑original, the Additional Collector Customs directed confiscation in the light of S.R.O. 374(I)/2002, dated 15‑3‑2002 (as amended vide Notification S. R. O. 485(I)/2002, dated 7‑6‑2003) which reads as under:‑‑

"Notification No.S.R.O.374(I)/2002, dated 15‑3‑2002.‑‑In exercise of the powers conferred by section 181 of the Customs Act, 1969 (IV of 1969), and in supersession of the order, dated the 17th December, 1998, the Central Board of Revenue is pleased to order that:‑‑

(a) No option shall be given to pay fine in lieu of confiscation in respect of smuggled goods falling under clause (s) of section 2 of the Customs Act, 1969 (IV of 1969), or goods imported in violation of section 15 of the Customs Act, 1969, or banned items notified vide Appendix‑A of the Import Trade and Procedures Order, 2000, including job lot and stock lot items where the customs duty is zero per cent or vehicles imported in violation of Import Trade and Procedure Order, 2000".

The last sentence added in the afore‑referred clause (a) i.e. "or vehicles imported in violation of Import Trade and Procedure Order, 2000" was added vide amending S. R. O. 485(I)/2002, dated 7‑6‑2003. Prior to that the Customs Authorities had the authority to give option to the owner to pay in lieu of confiscation of goods such fine as the officer thinks fit as provided in section 181 of the Customs Act. It reads as under:‑‑

"(181) Option to pay fine in lieu of confiscated goods.‑‑ Whenever an order for the confiscation of goods is passed under this Act, the officer passing the order may give the owner of the goods an option to pay in lieu of the confiscation of the goods such fine as the officer thinks fit.

Explanation.‑‑‑Any fine in lie of confiscation of goods imposed under this section shall be in addition to any duty and charges payable in respect of such goods, and of any penalty that might have been imposed in addition to the confiscation or goods:

Provided that the Board may, by an order specify the goods or class of goods where such option shall not be given:

Provided further that the Board may, by an order, fix the amount of fine which, in lieu of confiscation, shall be imposed on any goods or class of goods imported in violation of the provisions of section 15 or of a notification issued under section 16, or any other law for the time being in force."

7‑A. The amendment in the S.R.O. was brought about on 7th June, 2003 under the first proviso to section 181 of the Customs. When the respondent/importers were transferred to their home country, when they purchased the vehicles and even after arrival when they filed Bills of Entries the law provided that they should be given the afore‑referred option. This right had accrued to them to pay the fine in lieu or confiscation. This right could not have been taken away arbitrarily under the principle of locus poenitentiae enshrined in section 21 of the General Clauses Act which reads as under:‑‑

"(21). Power to make, to include power to add to, amend vary or rescind orders, rules or bye‑laws. Whereby any Central Act or Regulation, a power to issue notifications order, rules, or bye‑laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and condition if any, to add to, amend, vary or rescind any notification, orders, rules or bye‑laws so issued.

In Elahi Cotton Mills Limited and others v. Federation of Pakistan through Secretary, Ministry of Finance Islamabad and others (PTCL 1997 CL 260), the August Supreme Court, at page 400, held as under:‑‑

" .We may point out that an executive order/notification which is detrimental or prejudicial to the interest of a person, cannot operate retrospectively. However, a beneficial, executive order/notification issued by an executive functionary can be given retrospective effect. In this regard it will suffice to refer to the judgment of this Court in the case of Army Welfare Sugar Mills Limited and others v. Federation of Pakistan and others (1992 SCMR 1652)."

7. Confronted with the case No.2 amending S.R.O. could not have retrospective effect, learned counsel for the appellant attempted to argue that the goods were smuggled goods and, therefore, those were liable to be confiscated even otherwise. We are afraid this argument is not available to the appellant's learned counsel at all as, at no stage, the Customs Department alleged that those were smuggled goods. The goods were duly imported after proper declaration and the only ground for confiscation by the Additional Collector Customs was that the import was violative of rule 3(4) of the Personal Baggage and Gift Scheme (Import of Vehicles) Rule, 2000.

8. For what has been discussed above, we do not find the impugned judgment to be exceptionable to warrant interference in these Customs Appeals as no question of law has been raised either. Resultantly, these Customs Appeals; having no merit, are accordingly dismissed in limine.

W.A.M./C‑238/L Appeals dismissed.