COLLECTOR OF CUSTOMS, PESHAWAR VS Messrs PAPER INTERNATIONAL (PVT.) LTD., NOWSHERA
2006 P T D 2770
[Supreme Court of Pakistan]
Present: Sardar Muhammad Raza Khan and Nasir-ul-Mulk, JJ
COLLECTOR OF CUSTOMS, PESHAWAR
Versus
Messrs PAPER INTERNATIONAL (PVT.) LTD., NOWSHERA and another
Civil Petition No. 173-P of 2002, decided on 16/08/2006.
(On appeal from the judgment, dated 12-12-2001 of the Peshawar High Court, Peshawar Passed in F.A.O. No. 91 of 2000).
Customs Act (IV of 1969)---
----S. 156(1), Cls. (62) & (90)---Constitution of Pakistan (1975), Art.185(3)---Goods illegally taken out of warehouse without payment of duty---Allegation against importer-respondent was that he unloaded imported consignment in private bonded warehouse and consumed a portion of the same without intimation to Customs Authority---Customs Appellate Tribunal imposed' penalty on importer under clause (90) of S.156(1) of Customs Act, 1969---High Court set aside order passed by Tribunal and while reducing the amount of penalty held that importer was liable to penalty provided by S.156(1), clause (62) instead of clause (90) of the said section---Validity---Clause (62) and not clause (90) of S.156(1) of Customs Act, 1969 was applicable to the case of Importer who could also be tried by Special Judge Customs and, if found guilty, was to be liable to imprisonment for a term not exceeding five years or fine or both---No illegality having been pointed out in the impugned order, leave to appeal was declined.
Abdur Rauf Rohaila Advocate Supreme Court with Tasleem Hussain, Advocate-on-Record for Petitioner.
Syed Safdar Hussain, Advocate-on-Record for Respondent No.1.
Nemo for Respondent No.2.
Date of hearing: 16th August, 2006.
JUDGMENT
SARDAR MUHAMMAD RAZA KHAN, J.---The Collector Customs Peshawar seeks leave to appeal against the judgment, dated 12-12-2001 rendered by a learned Division Bench of Peshawar High Court whereby, it was held that, to the irregularity committed by Messrs Paper International (Pvt.) Ltd., the correct section of Customs Act applicable was section 156(1) clause (62) and not section 156(1) clause (90), as claimed by the Customs department.
2. The respondent imported two consignments of wood pulp on 20-5-1998 and 25-5-1998 from Canada and Indonesia. The consignment of 3000 metric tons of Indonesian origin was cleared at Karachi while Canadian consignment of 497.361 metric tons was unloaded in the factory in private bonded warehouse, both simultaneously. When the department physically checked the consignment on 5-10-1998, a shortage of 357.361 metric tons was discovered, to have been consumed without intimation to the Customs authorities.
3. The Adjudicating Officer vide order-in-original, dated 4-11-1998 imposed a penalty of rupees three million plus duties which, by the Customs Appellate Tribunal was reduced to rupees one million. The order of the Tribunal was set aside by the Hon'ble High Court through impugned judgment, holding that the respondents were liable to a penalty not exceeding rupees twenty-five thousand as provided by section 156(1) clause (62) of the Customs Act.
4. Having comprehended the actual commission or omission by the respondent-Company, we are left to determine as to what section of law is attracted, in the circumstances. Clauses (62) and (90) of section 156(1) of the Act are reproduced for facility of ready reference:--
| Offences | Penalties | Section of this Act to which offence has reference. |
| 62. If any person illegally takes any goods out of any warehouse without payment of duty, or aids, assists or is otherwise concerned therein. | Such person shall be liable to a penalty not exceeding twenty five thousand rupees and upon conviction by a Special Judge, he shall further be liable to imprisonment for a term not exceeding five years, or to fine, or to both. | Chapter XI? |
| 90. If any person, without lawful excuse, the proof of which shall be on such person, acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any goods, not being goods referred to in clause (89), which have been unlawfully removed from a warehouse or which are chargeable with a duty which has not been paid, or with respect to the importation or exportation of which therein a reasonable suspicion that any prohibition or restriction for the time being in force under or by virtue of this Act has been contravened, or if any person is in relation to any such goods, in any way without lawful excuse, the proof of which shall be on such person, concerned in any fraudulent evasion or attempt at evasion or any duty chargeable thereon, or of any such prohibition or restriction as afore-said or of any provi?sion of this Act appli?cable to those goods.? | Such goods shall be liable to confiscation; and any person concerned shall also be liable to penalty not exceeding ten times the value of the goods. | General. |
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5. A plain reading of the two clauses juxtaposed, would indicate without difficulty of comprehension or interpretation that to the circumstances of the present case, it is clause (62) of the section that applies and not clause (90). It clearly provides that the penalty shall not exceed rupees twenty five thousand and the person concerned can also be tried by the Special Judge Customs. It found guilty he shall be liable to imprisonment for a term not exceeding five years or fine or to both. .
6. In the circumstances, the High Court rightly carne to the conclusion that it arrived at. There being no force in the petition, it is hereby dismissed and leave to appeal refused.
S.M.B./C-20/SC????????????????????????????????????????????????????????????????????????????????? Leave refused.