FAKHAR-E-ALAM KHAN VS CHAIRMAN, FEDERAL BOARD OF REVENUE, ISLAMABAD
2012 P T D 44
2012 P T D 44
[Islamabad High Court]
Before Iqbal Hameed-ur-Rehman, C J and Muhammad Anwar Khan Kasi, J
FAKHAR-E-ALAM KHAN
Versus
CHAIRMAN, FEDERAL BOARD OF REVENUE, ISLAMABAD and 3 others
Custom Reference No.4 of 2011, heard on 12/10/2011.
Customs Act (IV of 1969)---
----Ss. 168, 179 & 196---Reference to High Court----Confiscation of goods---Appeals filed by the petitioner/importer against orders of the Adjudicating Authority whereby goods of the petitioner were confiscated, having been allowed with direction to unconditional release of confiscated goods---Director General Intelligence, assailed said order by way of appeal before Customs Appellate Tribunal---Said appeal having been allowed, the petitioner/importer had filed Reference to High Court---Validity---Under S.196 of Customs Act, 1969 only question of law could be raised in the Reference to High Court and question of fact could not be agitated at all in the said proceedings---In the present case as no question of law was involved, Reference was not maintainable---No illegality or irregularity was found in the impugned judgment nor same was contrary to or in violation of any provision of Customs Act, 1969---Goods were rightly confiscated---Reference was answered in the negative.
Collector of Customs, Karachi v. Messrs Ali Enterprises, Karachi 2006 PTD 651 and Collector of Customs, CustomsHouse, Peshawar v. Waheed Gul 2010 PTD 1781 rel.
Syed Ishfaq Hussain Naqvi for Petitioner.
Qazi Ghulam Dastgir for Respondents.
Taqi Mirza, Law Officer.
Date of hearing: 12th October, 2011.
JUDGMENT
IQBAL HAMEED-UR-RAHMAN, C.J.---This reference has been filed against the judgment dated 30-6-2011 passed by Appellate Tribunal (Customs, Federal Excise and Sales Tax), Islamabad Bench-II, whereby the appeal filed by Director General of Intelligence and Investigation, Islamabad (respondent No.2 herein) was accepted and the impugned order in appeal was set aside. It was further ordered to outrightly confiscate smuggled black tea of Kenya origin in terms of provision of S.R.O. 499(I)/2009 dated 14-6-2009.
2.The facts forming background of this custom reference are that respondent No.2 seized two consignments of tea owned by the petitioner firm and subsequently submitted the challans in the Court of learned Special Judge Customs, Rawalpindi, where the cases were tried, but the petitioner along with other co-accused were acquitted in both the cases. However, the case relating to goods seized by the respondents was tried and adjudicated by the Adjudicating Authority under section 179 of the Customs Act, 1969 and tea was confiscated vide order dated 17-9-2010. Feeling dissatisfied, the petitioner filed appeals before Collector Customs (Appeals) Islamabad under section 193 of the Act. The appeals were allowed with the direction to unconditional release of goods/tea vide order dated 7-12-2010. Respondent No.2 assailed the said order by way of appeal before the Customs Appellate Tribunal, Islamabad, which was allowed, hence the present custom reference.
3.Learned counsel for the petitioner contends that the petitioner purchased the goods in question and at the time of taking the possession of goods, valid sales tax invoices were produced, but even then the goods were taken into possession and subsequently confiscated; that when the petitioner produced the documents regarding purchase of goods the onus was shifted upon the respondents to prove that the same were forged and fictitious; that under the law appeal could be filed after obtaining authority letter from competent authority, but the same was filed without any authority letter. While concluding the arguments learned counsel agitates the three points in support of this reference i.e., (i) the impugned order is not speaking order, (ii) invoices/documents were never got verified, and (iii) no authority letter was produced at the time of filing of appeal or subsequently.
4.Per contra, learned counsel for the respondents contends that instant reference has been filed under section 196 of the Customs Act, 1969, wherein only question of law can be raised and the question of fact cannot be agitated at all in such like proceedings; that no question of law is involved in this reference, therefore, the same is not maintainable; that the proceedings under Customs Act and criminal proceedings are of different nature, which have no concern with each other; that before filing of appeal, approval to file the same was duly obtained; that the recovered items are to be confiscated under the law and the same cannot be released on payment of duty etc; that the invoices produced was regarding import of Kolkata Indian origin tea; whereas the recovered tea is Kenya origin. With these submissions, it is prayed that reference may be dismissed.
5.We have heard the arguments and surveyed the material made available on the file carefully.
6.Admittedly, this reference has been preferred under section 196 of the Customs Act, 1969, which clearly provides that any aggrieved person or Collector or any other Officer not below the rank of an Additional Collector may prefer an application in the prescribed form along with a statement of the case, to the High Court stating any question of law. The above stated provision of law clearly demonstrates that reference can be filed before High Court in respect of any question of law only. Neither any question of law has been agitated in the reference/petition nor the same has been pointed out by the learned counsel for the petitioner during the course of arguments. Learned counsel for the petitioner has not been able to rebut this legal proposition. In this regard we are also pinning our faith to the case of Collector of Customs, Karachi v. Messrs Ali Enterprises, Karachi (2006 PTD 651 [Karachi High Court]), wherein it has been held as under:--
The jurisdiction under section 196 of the Customs Act, 1969, is advisory innature and the opinion by this Court isto be given on the point of law only arising out of an order by the Tribunal.
Reliance is further placed on the case of Collector of Customs, Customs House, Peshawar v. Waheed Gul (2010 PTD 1781, Peshawar High Court). Since no question of law has arisen or agitated, so the reference is liable to be dismissed on this ground.
7.As regards the questions of fact raised by learned counsel forthe petitioner, copy of note put up by Law Officer has been produced today, which clearly depicts that Deputy Director was duly nominated to file appeal before the Appellate Tribunal. As far as non-mentioning of reasons in the impugned judgment of Appellate Tribunal as stressed by the learned counsel for the petitioner is concerned, the impugned judgment dated 30-6-2011 itself negates the contention inasmuch as the same contains sufficient reasons. We are also not impressed by the third contention that it was the duty of the respondents to verify the documents. Basically, it was the duty of the petitioner to prove that the documents were valid. Moreover, the invoices were relating to the import of Kolkata Indian Origin tea whereas the recovered tea was Kenya origin. As per S.R.O 566(I)/2005 dated the 6th June, 2005 black tea is a smuggled item. Further S.R.O.499(I)/2009 dated the 13th June, 2009 contemplates that no option shall be given to pay fine in lieu of confiscation of smuggled goods. Therefore, the goods were rightly confiscated. There appears no illegality or irregularity in the impugned judgment nor the same is contrary to or in violation of any provision of Customs Act, 1969.
8.For the reasons listed supra, the instant custom reference is dismissed.
H.B.T./60/IslReference dismissed.