COLLECTOR OF CUSTOMS, LAHORE VS MUHAMMAD YOUSAF AMIN and another
2006 P T D 1836
[Lahore High Court]
Before M. Bilal Khan and Sheikh Azmat Saeed, JJ
COLLECTOR OF CUSTOMS, LAHORE
Versus
MUHAMMAD YOUSAF AMIN and another
C.M. No. 240-C of 1997, decided on 24/03/2006.
Customs Act(IV of 1969)---
----Ss. 156(1)(89), 157, 178 & 196(3)---Appeal to High Court---Question of fact---Sole contention of the Revenue in the case was that `Form G' in question did not relate to the gold seized---Such contention examined in the facts and circumstances of the case attempted to raise a pure factual controversy and no question of law arose requiring adjudication by the High Court---Appeal being without any merit was dismissed.
Izhar-ul-Haq Sheikh for Petitioner.
Mian Abdul Ghaffar for Respondents.
ORDER
This petition under section 196(3) of the Customs Act, 1969 arises from the judgment, dated 13-5-1996 passed by the Customs, Central Excise and Sales Tax Appellate Tribunal whereby the appeal filed by the respondents was accepted.
2. Brief facts leading to the filing of this petition are that the Customs Authorities intercepted a Car parked in the Parking Lot of Lahore International Airport on 7-10-1992 and took into custody the respondents present in the Car who had arrived from a PIA Flight from Karachi. During the search of the vehicle 4000 tolas of gold were recovered (4160 tolas as per the contention of the respondents). The respondents claimed that the gold in question has been lawfully imported into Pakistan and the requisite duty had been paid and in support of the contentions produced 16 Certificates (Form-G), 14 of which were issued by the Commercial Section of the Consulate General of Pakistan, Dubai and two by the Pakistan High Court Commission, Singapore. Apparently the said Forms-G did not mention any specific marks and numbers of the gold bars. Hence, the same were sized and F.I.R. No.67, dated 8-10-1992 was lodged with Police Station Sarwar Road, Lahore Cantt. under section 156(1) item 89 and sections 157 and 178 of the Customs Act, 1969 against the respondents.
3. Subsequently a show-cause notice, dated 2-2-1993 was issued a respondents Nos. 1 and 2 calling upon them to explain why the gold in question should not be confiscated and penal action under the Customs Act, 1969 as well as the Import and Export (Control) Act be not taken. Respondents Nos. 1 and 2 submitted their reply, dated 17-3-1993 reiterating that the gold in question had been lawfully imported' through the aforementioned Forms-G and duty in respect thereof paid. The Collector of Customs seized of the matter, after hearing the parties vide order, dated 26-8-1995 issued on 27-8-1995 directed the confiscation of the gold, and also imposed a further penalty of Rs.One million each on respondents Nos. 1 and 2. The Car in question was allowed to be released subject to payment of Rs.25,000 in lieu of confiscation. Aggrieved the respondents Nos. 1 and 2 filed an appeal before the Customs, Central Excise and Sales Tax Appellate Tribunal which was accepted vide order, dated 12-5-1996 and the order-in-original impugned before the Tribunal was set aside.
4. It is contended by the learned counsel for the Revenue that the Certificates of (Forms-G) produced and relied upon by the respondents do not contain any marks and numbers of the gold purported to be imported thereunder, hence the said Certificates (Forms-G) do not tally with the gold seized from the respondents.
5. The learned counsel for the respondents has controverted the contentions raised on behalf of the Revenue. It is contended that by the learned counsel for the respondents that in fact 4160 tolas of gold was seized not 4000 as alleged by the Revenue. The said gold had been lawfully imported in Pakistan through the Certificates (Forms-G) presented by the respondents at the earliest. The said Forms-G issued by the Commercial Section of the Consulate General for. Pakistan in Dubai which had duly authenticated and verified the same vide letter, dated 20-12-1993. The said Forms-G contained all necessary particulars including name, parentage, Passport number and quantum of gold sought to be imported thereunder. It was the duty of the Issuing Officer at the Consulate to mention any further marks and number of the gold bars and the respondents cannot be penalized for any inaction of such Officer. It was further contended that even the receipt of the Jeweller in Dubai from whom the gold was purchased was presented to the authorities. Adds that admittedly the duty in respect of the gold in question had been paid and receipts produced before and accepted by the Department. The learned counsel further adds that the quantum of duty payable is only 3 per cent of the import value, hence there could be no occasion of any person running the risk of smuggling the gold. It is further contended that it was the consistent practice of the Department that legally identical Forms-G, wherein marks and numbers were not mentioned in detail, have been accepted. Further submits that pursuant to the FIR registered against the respondents criminal proceedings were initiated before the Special Judge Customs wherein the respondents have since been acquitted vide order, dated 4-6-1994. Adds that no question of law, therefore, arises requiring any adjudication by this Court.
6. On Court's query, the learned counsel for the Revenue has informed us that the respondents have in fact been acquitted by the Special Judge Customs from the charge of smuggling of the said gold. He has further informed us that no appeal or other proceedings have been initiated by. the Revenue against the said acquittal. With reference to the consistent practice of the Department, attention of the counsel for the Revenue was drawn to the order-in-original, dated 22-5-1993 mentioned in the order of the Tribunal whereby gold had been released against Forms-G which did not specifically mention marks and numbers, the learned counsel for the Revenue conceded that in fact the goods had been released in the said case against Forms-G which were legally similar to the Forms-G relied upon and produced by the respondents. The learned counsel further informed the Court that the Department had not filed any appeal or other proceedings challenging the said order. It is also not disputed by the learned counsel for the Revenue that 10 tolas gold bars do not bear any seriatim numbers which may be unique to each bar and only the purity in percentage points is mentioned along with the name of one of the few makers thereof. In the circumstances the decision of the Tribunal cannot be said to be perverse. The sole contention of the learned counsel for the Revenue that the Forms-G in question do not relate to the gold seized, examined in the facts and circumstances of the case mentioned above attempts to arise a pure factual controversy. No question of law arises requiring adjudication by this Court. In this view of the matter this petition being without any merit and is hereby? dismissed.
M.B.A./C-19/L??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.