COLLECTOR,, CUSTOMS SALES TAX AND CENTRAL EXCISE, QUETTA VS MANAN KHAN, KARACHI
2011 P T D 2778
2011 P T D 2778
[Quetta High Court]
Before Mrs. Syeda Tahira Safdar and Muhammad Noor Meskanzai, JJ
COLLECTOR,, CUSTOMS SALES TAX AND CENTRAL EXCISE, QUETTA
Versus
Messrs MANAN KHAN, KARACHI and another
Custom Appeal No.6 of 2005, decided on 25/08/2011.
Customs Act (IV of 1969)---
----Ss. 2(s), 156, 168, 179, 181, 194-A & 196---Smuggling---Confiscation of vehicle and conviction of accused-Appeal against acquittal---Special Judge (Customs) acquitted the accused and ordered to release vehicle in question---Appellate Tribunal upheld findings of Special Judge---Appellate Tribunal had not recorded its findings on any other material, but complete reliance had been made on the decision given by the Special Judge (Customs)---Appellate Tribunal was supposed to apply its mind apart from the decision of the Special Judge, made in a criminal case; and had to decide the matter in accordance with law, which had not been done---Order of acquittal was set aside, in circumstances.
Ch. Mumtaz Yousaf Standing Counsel for Appellant.
Messrs Manan Khan and Ghulam Hussain Mengal for Respondents.
Date of hearing: 9th March, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J.---Being aggrieved by the order of Customs Appellate Tribunal, Bench-III, Karachi, dated 18-5-2005, instant appeal has been preferred on the following law points:--
(1)? Whether the Tribunal has erred in Law in directing to release the seized vehicle To the respondent?
(2)? Whether the Tribunal seriously erred in Law in ignoring and passing an order testifying an illegal vehicle and has failed to examine the facts of the case brought before it.
(3)? Whether findings of Appellate Tribunal were based on misreading and non-reading of record/facts leading to the seizure of the said vehicle placed before it during the course of hearing of appeal.
(4)? Whether the learned Appellate Tribunal has erred in holding that as the appellant has been acquitted of the charge by the Special Judge Customs under the criminal offence, hence appeal is decided in his favour. This view of the court is against the law as well as settled principles of justice i.e. evidence of one case cannot be used in other.
(5)? Whether the learned Appellate Tribunal has decided the matter without giving any reason and is a non-speaking order contrary to the judgments of the superior courts in which directions have been given to the Tribunal to decide the matter properly with cogent reasons.
(6)? Whether the learned Tribunal was justified to release the vehicle on mere sympathetic ground without discussing the merits and probabilities of the case.
(7)? Whether the findings of the learned Appellate Tribunal are based on mis-reading and non-reading of the material/facts available."
It is contention of the appellants that the impugned order is based on mis-reading, and non-reading of the material/facts, while the Appellate Tribunal wrongly held that as Special Judge, Customs under criminal hierarchy has acquitted the appellant of the charge, hence appeal should be accepted without discussing the facts, and deciding the matter on its own merits. Further, the evidence, and the facts of one case cannot be relied upon in other case. Therefore, the Appellate Tribunal while doing so has acted illegally. It is further contended that the fact that the engine number of the vehicle was tempered, and act of forgery was conclusively established in the papers obtained from Excise and Taxation Office, Karachi, it was not considered by the Appellate Tribunal; rather sole reliance was made on acquittal orders of the Special Judge, Customs. Furthermore, this fact has also not been considered by the Appellate Tribunal that the status of the vehicle in question has been established as smuggled one, and was being filed on the basis of fake, and forged documents. Further, Forensic Examination by the Police Crimes Branch also transpired that engine number of the vehicle was completely punched. It is contended that the Tribunal without considering the facts as mentioned hereinabove, recorded its findings relying on the decision made in the criminal case, which is illegal, thus not sustainable.
The learned counsel for the parties are heard, while record is perused. Through instant appeal order dated 10-3-2005 has been assailed, whereby the Appellate Tribunal while holding that Customs Authorities have failed to prove their case against the appellant, the order in original was set aside, and appeal was allowed. The learned counsel for the appellant mostly stressed that the Tribunal has made a non-speaking order, further the appeal is decided on the basis of the fact that the respondent has been acquitted of the charge by Special Judge, Customs. It is asserted that it is an error of law as evidence recorded in some other case cannot be relied upon. The perusal of the impugned order reveals that the Appellate Tribunal while dilating upon the matter concluded that:-
"5. In view of the facts discussed above we have of the view that customs authorities have failed to prove their case made out against appellant as during the trial before Sessions Judge/Special Judge, Customs, Quetta, it is admitted by the Investigating Officer that the registration book produced by accused Manan Khan is a genuine one. With this discussion order-in-original is hereby set aside and appeal is allowed."
The perusal of record reveals that the petition was admitted on the point formulated through order dated 23-11-2005 to the effect that:--
"Whether the acquittal in criminal case would amount to acquittal in custom case?"
The bare perusal of the impugned order reveals that the learned Appellate Tribunal has not recorded its findings on any other material, rather complete reliance has been made on the decision given by the Special Judge, Customs in Sessions case No.28 of 2004, and Customs Case No.13 of 2004. The learned counsel for the appellant stands to his contention, and stressed that the evidence recorded in some other case cannot be relied upon. But in reply the learned counsel for the respondent failed to address this issue.
Section 156 of the Customs Act, 1969 provided the punishment for the offences under the Act. The plain reading of the section reveals that most of the offences mentioned therein are to be adjudicated by the Customs Authorities, while there are also certain offences, which are triable by the Special Judge, Customs. It is further to be noted that there are also several offences, which are to be adjudicated by both the Customs Authorities, as well as by the Special Judge. In such like cases both the forums exercised their jurisdiction independently. In case in hand the confiscation of the vehicle has been made under clauses (8) and (89) of section 156(1) of the Customs Act, 1969. While the trial before the Special Judge, Customs, was held for the offence under Section 156(89) Customs Act, 1969, and offences under sections 420, 468 and 471 Pakistan Penal Code (P.P.C.). The perusal of clauses (8) and (89) of section- 156 of Act, 1969 shows that two penalties are provided therein, one pertains to confiscation of the goods, and the person is liable to be fined. While the second penalty provided therein is of imprisonment awarded by the Special Judge upon his conviction. The order of confiscation is to be made in view of provisions 'contained in section 179 of the Act, which describes the jurisdiction, and powers of the officers of Customs for making order for confiscation of goods, and imposition of penalty. Furthermore, in addition section 181 of the Act, empowers the Officer, passing the order of confiscation, to give the owner an option to pay fine in lieu of the confiscation of the goods. While on the other hand, the Special Judge, appointed under section 185 of the Act, has to exercise its powers within the ambit of section 185-A of the Act. Further, the perusal of provisions of the Act 'reveals that separate procedures are provided for both the forums, with separate appellate forums. The appeals against order of the officer of Customs lies to Collector (Appeals), as provided under section 193 of the Act, while the order of the Collector can be assailed before the Tribunal constituted under section 194 of the Act, and in said hierarchy to this court as provided under section 196. As far as Special Judge is concerned, the matter adjudicate thereon, the appeal provided against his order lies to Special Appellate Court established under section 185-F of the Act.
Keeping in view the above referred provisions of the Act, it is to be noted that the penalty, and punishment are mentioned side by side in the 'TABLE', while simultaneous jurisdiction of both the Customs Officer, and Special Judge are provided thereon. Furthermore, keeping in mind the object behind the law, the confiscation so made does not amount to a punishment for the crime allegedly committed by a person. Rather, in view of section 181 of the Act, where by an option is given to the owner for payment of fine in lieu of confiscation, it is clear to the extent that the order of confiscation is made as a tool to collect revenue in shape of penalty. While the sentence awarded is in addition to punish the person committed the act. Therefore, in view of the same, it can safely be concluded that the proceedings taken by Customs Authorities for confiscation of goods, are some how in nature of departmental proceedings for purpose of collection of revenue, which does not bar the Authorities from initiating criminal proceedings against the wrong doer. Thus in view of the same, the criminal proceedings are quite distinct from the proceedings held by the Department, while the imposition of civil penalties i.e. confiscation will not amount to conviction and sentence. Therefore, the civil penalties will not absolve the transgressor from liability to criminal prosecution and vice versa. In addition, there is also no restriction on holding criminal proceedings prior to adjudication by the Officer of Customs, or afterwards or even simultaneously.
In views of above discussion, the point formulated is decided in negative. The Appellate Tribunal has made an error, while placing reliance on the order of the Special Judge, thereby decided the appeal, and set aside order in original. The Appellate Tribunal had to apply its mind apart from the decision of the Special Judge, made in a criminal case, and had to decide the matter in accordance with law, which has not been done in present case. Thus in view of the mentioned facts, the appeal is hereby accepted, impugned order dated 23-5-2005 is hereby set aside.
H.B.T./105/Q?????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.