MUHAMMAD YOUSAF VS ADDITIONAL COLLECTOR OF CUSTOMS, KARACHI, 2008 PTD-KARACHI-HIGH-COURT-SINDH 1264 (2008)

Customs Act (IV of 1969)---

----Ss. 139, 142, 156(1) & 196---Imports and Exports (Control) Act (XXXIX of 1950), S.3---Making declaration by owner of baggage regarding imported goods---Seizure of goods---Reference/appeal to High Court---Goods imported by appellant were seized and a show-cause notice was served on appellant with allegation that bringing of goods into the country as passenger's Baggage, was restricted under S.3(1) of Imports and Exports (Control) Act, 1950, except on production of import authorization---Submission of appellant was that he had disclosed the goods to the Examining Officer and had informed him that he had brought the goods for re-export---Appellant, in circumstances, had discharged his legal obligations as provided under S.139 of Customs Act,, 1969---If the officer was satisfied that the goods were not imported with the intention of consumption in Pakistan, he could, at the request of the passenger, detain such article for the purpose of being returned to importer/appellant on his leaving Pakistan---Adjudicating officer confiscated the goods on the plea that same were in commercial quality and the Appellate Tribunal, without any material available on record, found that goods were brought for consumption in Pakistan, whereas from seizure report it appeared that the Seizing Officer was satisfied that the goods were not imported with the intention of consumption in Pakistan---Provision of Ss. 139 & 142 of the Customs Act, 1969 had not been considered by both forums below---Adjudicating Officer as well as the Appellate Tribunal were bound to provide relief to appellant to which he was entitled under law and the goods could not be confiscated and the relief could not be denied on presumption---Judgment of Adjudicating Officer and the Appellate Tribunal, were set aside and case was remanded to the Adjudicating Officer to decide the same afresh in terms of Ss.139 & 142 of the Customs Act, 1969.

Muhammad Nadeem Qureshi for Appellant.

Raja Muhammad Iqbal for Respondent.

Date of hearing: 25th March, 2008.

JUDGMENT

NADEEM AZHAR SIDDIQI, J.---By filing of this Special Custom Reference under section 196 of the Customs Act, 1969 (hereinafter referred to as "the Act") the appellant has challenged the judgment, dated 13-8-2005 passed by the Customs, Excise and Sales Tax Appellate Tribunal; Karachi Bench-II (hereinafter referred to as "the Tribunal").

The facts necessary for disposal of this reference are that on 9-4-2004 the appellant arrived at Karachi from Dubai by Flight No.PK-214 and on examination of his baggage following goods were recovered:---

(1) Jewellary Assorted (Gold) weighing 965 grams.

(2) Jewellary Assorted (Silver) weighing 4044 grams.

The goods were seized vide Seizure Report, dated 9-4-2003 and a show-cause notice, dated 19-5-2003 was served upon the appellant with the allegation that bringing of goods into the country as passenger's Baggage is restricted under section 3(1) of the Imports and Exports (Control) Act, 1950 except on production of a import authorization.

The appellant has filed his reply to the show-cause notice in which it was admitted that the goods were seized. It was further stated that the goods be treated for re-export. Thereafter, the order-in-original was passed on 31-12-2003 and the goods were confiscated under section 156(1) of the Customs Act, 1969 read with section 3(3) of the Imports and Exports (Control) Act, 1950. Consequently, the appellant has challenged the order-in-original before the Tribunal, who had dismissed the appeal, hence this reference.

The appellant has formulated several questions of law but only pressed the following question of law:---

"Whether in case of true declaration made under section 139 of the Customs Act the option under section 142 of the Customs Act can be exercised or not, and whether the learned Tribunal failed to consider the legal obligation of the statute."

The learned counsel for the appellant submits that he has disclosed the goods to the Examining Officer and has informed him that he had brought the goods for re-export. He then submits that the appellant has discharged his legal obligations as provided under section 139 of the Act, therefore, confiscation of goods is in violation of section 142 of the Act. He has referred to the Seizure Report and submits that inspite of recommendation of the Seizure Officer to release the goods on payment of taxes pending departure the goods were confiscated.

The learned counsel for the respondents has supported the impugned judgment and submits that no proof has been filed to the effect that the goods were brought in the country for re-export purposes. He then submits that the appellant is a Pakistani National and has come to Pakistan without any return ticket with intention to stay for indefinite period and has concocted a story after seizure of the goods.

From the Seizure Report of the plea of the appellant found force that he has declared the items before examination and thus complied with the provisions of section 139 of the Act. From item No.14 of the Seizure Report it appears that the Seizure Officer has allowed for releasing of goods on payment of taxes and duties pending departure. It also appears that the Tribunal as well as the Adjudicating Officer have not considered the effect of disclosing the goods before examination and releasing of goods on payment of taxes pending departures. Section 142 of the Act reads as under:---

"Where the baggage of a passenger contains any article which is dutiable or the import of which is prohibited or restricted and in respect of which a true declaration has been made under section 139, (and about which the appropriate officer is satisfied that these were not imported with the intention of consumption in Pakistan, he) may, at the request of the passenger, detain such article for the purpose of being returned to him on his leaving Pakistan."

Perusal of the above, it appears that if the appropriate officer is satisfied that the goods were not imported with the intention of consumption in Pakistan he may, at the request of the passenger, detain such article for the purpose of being returned to him on his leaving Pakistan. The appropriate officer instead of retaining the goods allows release of goods on payment of taxes and duties which appears to be not proper and lawful. However, the Adjudicating Officer has confiscated the goods on the plea that the same is in commercial quality and the Tribunal without any material available on record held that the goods were brought for consumption in Pakistan.

From the seizure report it appears that the Seizing Officer was satisfied that the goods were not imported with the intention of consumption in Pakistan.

None of the forum has specifically examined the provisions of sections 139, and 142 of the Act and has not considered the observations of the Seizing Officer regarding declaration of goods by the appellant before examination and the release of goods by the Seizing Officer on payment of taxes and duties pending departure.

Both the forums have failed to examine and give effect to the provisions of law and have committed an error. The Adjudication Officer as well as the Tribunal were bound to provide relief to the applicant to which he is entitled to under law and the goods cannot be confiscated and the relief cannot be denied on presumption.

After considering the material available on record, order-in- original, dated 31-12-2003 and judgment, dated 13-8-2005 are set aside. The case is remanded to the Adjudication Officer to decide the case afresh after notice to the appellant in term of sections 139 and 142 of the Act.

This reference is allowed and disposed of in the above terms.

H.B.T./M-32/KAppeal allowed.