NOOR ALI VS COLLECTOR CUSTOMS, SALES TAX, HYDERABAD
2007 P T D 2449
2007 P T D 2449
[Karachi High Court]
Before Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ
NOOR ALI
Versus
COLLECTOR CUSTOMS, SALES TAX, HYDERABAD
S.C.R. Application No. 209 of 2006, decided on 19/12/2006.
Customs Act (IV of 1969)---
----Ss.3, 156(1)(8)(89), 157, 171 & 196---Appeal/Reference to High Court---Section 3 of Customs Act, 1969, had categorized the Collector of Customs and Deputy Collector of Customs, both as "officers of Customs"---Nothing was on record to conclude that memo. of appeal preferred before the Tribunal was not signed by -the Collector of Customs or Deputy Collector of Customs as shown in the title of memo of appeal and index annexed with the memo of appeal---Verification of memo. of appeal made by the Inspector of Customs, who, according to the counsel, was not a `Customs Officer', could, at best, be a procedural lapse, which would not vitiate the whole proceedings before the Tribunal on that count alone---Findings recorded by the Tribunal being findings of facts based on the evidence available before the Tribunal, same could not qualify as the questions of law within the ambit of S.196 of the Customs Act, 1969.
Ch. Muhammad Iqbal for Appellant.
Shaukat Ali Qureshi for Respondent.
ORDER
ANWAR ZAHEER JAMALI, J.---This Customs Reference Application under section 196 of the Customs Act, 1969, proposes following questions for the opinion of this Court:--
"(1) Whether the learned Appellate Tribunal erred in holding that the Appeal- Tiled under section 194-A before the learned Appellate Tribunal by the Deputy Collector (Law) without any authorization by the Collector of Customs is maintainable?
(2) Whether in the facts and circumstances of the case the learned Appellate Tribunal erred in declaring the goods as smuggled goods'?
(3) Whether the charge of .smuggling without evidence for the subject goods freely available in the open market is sustainable under the Customs Act, 1969?
(4) Whether in the circumstances of the case, the learned Appellate Tribunal has not taken into consideration the factual and legal grounds pleaded in the memo. of Appeal`?"
2. Briefly stated, the relevant facts of the case are that on 24-10-2004, on an information received by the Assistant Collector, Customs, Sales, Tax and Federal Excise, Sukkur that foreign origin, clothes and betel-nuts were being smuggled from Quetta to Interior of Sindh through Mazda Truck bearing Registration No. TKB-.762, the said truck was unsuccessfully chased by the staff to the Mobile Squad-II Customs, Larkana, however, after sometime it was found parked on roadside near Soomra Petrol Pump, Jacobabad. On search of the vehicle, hidden below forty two bags of onion, .4900 Kgs betel-nuts of foreign origin in 49 bags, gents cloth of foreign origin measuring 4616 Yards and ladies cloth of foreign origin measuring 820 yards. were recovered., being smuggled by some unknown person, Mashirnama of recovery was prepared and accordingly further proceedings were initiated against: the unknown smugglers for commission of offence punishable under clause (8) (89) of section 156(1) and 157 of the Customs Act. Notice under section 171 of the Customs Act, 1969, was accordingly issued and seized goods were confiscated vide Order-in-Original No.461 of 2005, dated 15-3-2005. Later on, the present appellant filed appeal under section 193 of the Customs Act, 1969 before the Collector of Customs (Appeals), who allowed the said appeal vide Order-in-Appeal No. 18 of 2005, dated 9-1-2006.
3. The Department being aggrieved by such order of the Collector of Customs (Appeals) preferred appeal before the Tribunal, which had passed the impugned order, thereby setting aside the order in appeal, dated 9-1-2006 and consequently, restored the Order-in-Original No.146 of 2005, dated 15-3-2005.
4. Mr. Ch. Muhammad Iqbal learned counsel for the appellant after narration of relevant facts, as noted above, vehemently contended that the rule laid down by the Hon'ble Supreme Court of Pakistan in the case of Sikandar A. Karim v. The State (1995 SCMR 387), which was squarely applicable to the facts and circumstances of the case was over-looked by the Tribunal while passing its impugned order. He made particular reference to the observation of the Apex Court from this judgment, which reads as under:--
"If the items alleged to be smuggled by the prosecution were available freely in the open market and imports of such goods were not banned in the country, a presumption may raise that these goods were lawfully brought in the country unless contrary is shown."
And contended that this dicta of the Hon'ble Supreme Court was rightly followed by the Collector of Customs (Appeals) in allowing appeal of the present appellant. He further contended that the whole exercise of verification of purchase receipts produced by the appellant was carried out in his absence, thus it was of no legal value. The learned counsel also challenged the maintainability of appeal before the Tribunal by making reference to the memo. of appeal. In this regard he submitted that in the original typed memo. of appeal the appeal was shown to have been preferred by the Collector of Customs, Sales Tax and Federal Excise, Hyderabad, while in the index page name of Deputy Collector (Law) was added and in the column of verification, its verification was shown through Mr. Muhammad Ali Pechuho, Inspector/seizing officer in the office of the respondents. Therefore, the appeal cannot be deemed to have been filed by an officer of Customs Department duly authorized by law for this purpose.
5. In reply to the submissions by Ch. Muhammad Iqbal, Mr. Shoukat Ali Qureshi learned counsel for the respondent has made reference to the observations of the Tribunal contained in the impugned order to show that the goods of foreign origin were admittedly recovered from the seized Mazda Truck and on verification of the purchase receipts produced by the appellant the same were found by the Customs Authority to be fake and fabricated. Still, in order to satisfy that the whole exercise of verification carried out by the Customs Authority was transparent and bona fide, Tribunal had offered the appellant for re-investigation/ verification in his presence, but even such offer was declined by the appellant., In such circumstances, there was sufficient material available before the Tribunal to conclude that the goods of foreign origin recovered from Mazda Truck bearing Registration No.TKB-762 were smuggled goods which were being brought inside the country from Quetta through illegal means.
6. We have carefully considered the arguments advanced by the learned counsel and perused the material placed on record. Admittedly, at the time of seizure of goods by the Customs Mobile Squad-II, Larkana near Soomra Petrol Pump, Jacobabad, nobody had claimed its ownership. However, later on present appellant, after passing of order-in-original, had preferred appeal under section 193 of the Customs Act before the Collector of Customs (Appeals) and it was in these proceedings that he came up with the claim of lawful purchase of the foreign origin goods, as detailed in the recovery of memo. and produced the purchase receipts. The purchase receipts produced by the appellant were got verified from the concerned shopkeepers at Quetta by the Customs Authority in routine manner to see its genuineness or otherwise, which showed that the same were fake and fabricated, re-verification 'of these receipts was also undertaken from the concerned shopkeepers by the Deputy Superintendent, which also yield the same result that the receipts produced were fake and were never issued by these shopkeepers. As regards purchased of 4900. kgs. Betel-nuts, which in our view, cannot be purchased in ordinary course for personal use, no receipt whatsoever was produced by the appellant. This fact. is also conceded before us by the learned counsel for the appellant.
7. Having considered the above noted material facts of the case, before proceeding further to examine the merits of .the factual controversy raised in this appeal, the moot point for consideration before us is that whether the questions proposed are questions of law emanating from the order of Tribunal, dated 15-9-2006, so as to be adjudicated and answered in terms of section 196 of the Customs Act, 1969. As regards question No. 1, it may be observed that section 3 of the Customs Act, 1969, amongst others, categorizes the Collector of Customs and Deputy Collector of Customs, both as Officers of Customs. There is nothing before us to conclude that the memo. of appeal preferred before the Tribunal was not signed by the Collector of Customs or Deputy Collector of Customs as shown in the title of memo. of appeal and the index annexed with the memo. of appeal. Further the verification of memo. of appeal made by the Inspector of Customs, who, according to the learned counsel is not a Customs Officer categorized under section 3 of the Customs Act, may, at best, be a procedural lapse, which will not vitiate the whole proceedings before the Tribunal on this count alone. Accordingly, the question No. l is answered in negative.
8. As regards the other questions proposed in the memo. of appeal, after careful examination of the case record, we find that the whole findings in this context recorded by .the Tribunal are findings of facts based on the evidence available before the Tribunal, thus these questions do not qualify as the questions of law within the ambit of section 196 of the Customs Act, 1969. Needless to observe that the judgment of the Hon'ble Supreme Court in the case of Sikaiidar A. Karim (Supra) referred to by the learned counsel for the appellant is distinguishable on facts and it has no applicability to the case of the present appellant, having been delivered, while dealing with a bail application relating to some offence under the, Customs Act, 1969.
9. This being the position, this Customs Reference Application is dismissed along with the listed application.
H.B.T./S-23/KReference dismissed.