The COLLECTOR OF CUSTOMS VS ASIF ALI, 2015 PTD-KARACHI-HIGH-COURT-SINDH 2651 (2015)

Customs Act (IV of 1969)---

----Ss. 2(s), 15, 16, 26 & 187---Reference to High Court---Disputed question of fact---Vehicle in question was seized from respondent by Customs authorities alleging the same to be smuggled vehicle---Order of authorities was set aside by Customs Appellate Tribunal holding that no case of smuggling was made out---Validity---Order passed by Appellate Tribunal did not suffer from any error or illegality, finding of fact recorded by the Tribunal did not require any interference by High Court in Reference---Decision of Appellate Tribunal was based on finding of facts which did not give rise to any question of law, requiring any opinion of High Court---Reference was dismissed in circumstances.

Assistant Director, Intelligence and Investigation, Karachi v. Messrs B.R. Herman and others PLD 1992 SC 485; C.P.No.D-2280/ 2010 and Spl. Customs Ref. Application Nos.263/2010, 245/2008 and 253/2008 ref.

S. Mohsin Imam for Applicant.

Nemo for Respondents.

Date of hearing: 15th May, 2015.

ORDER

AQEEL AHMED ABBASI, J.---Through instant reference application, the Collector of Customs has proposed following questions, which according to learned counsel for the applicant, are questions of law arising from the impugned order passed by the Customs Appellate Tribunal, Bench-III, Karachi, in Customs Appeal No.H-82/2013/1515 dated 4-10-2013:

(i) Whether the Appellate Tribunal has not erred in law to interpret the spirit of section 2(s) of the Customs Act, 1969?

(ii) Whether the Appellate Tribunal has not erred in law to interpret the spirit of sections 15, 16 and 26 of the Customs Act, 1969?

(iii) Whether the Appellate Tribunal has not erred in law by not considering the fact that there are several cases where vehicles are found plying on the road within the country and proved smuggled one on subsequent inquiries?

(iv) Whether the Appellate Tribunal has not erred in law by not considering the fact that the import documents are required under section 187 of the Customs Act, 1969 to run a imported vehicle on the road?

(v) Whether the Appellate Tribunal has not erred in law by not considering the fact that no one appeared at the original stage and then at Appeal level is an afterthought of the claimant?

(vi) Whether the Appellate Tribunal has not erred in law by not considering the fact that the driver of the vehicle ran away from the scene proves that he was aware of the fact that he was driving a smuggled van?

(vii) Whether the Tribunal has not erred in law by not considering the fact that purchase of a smuggled/illegally imported vehicle from any person does not make it legal except through due process of import?

2. Learned counsel for the applicant has readout the impugned order passed by the Customs Appellate Tribunal as well as the order-in-original and submits that the Appellate Tribunal has erred in law by allowing the appeal filed by the respondent and holding that no case of smuggling is made out. It has been prayed that the impugned order may be set-aside and the questions proposed may be answered in favour of department.

3. We have heard the learned counsel for the applicant, perused the impugned order passed by the Customs Appellate Tribunal in the aforesaid appeal as well as the order of Collector (Adjudication). It appears that the only allegation against the respondent's vehicle was that it was found at National Highway Babarloe Bypass, Sukkur, without Registration number, whereafter, it was seized by the Customs Authorities on the presumption that since driver could not produce the import documents, the same was a smuggled vehicle. Show Cause Notice was issued on the allegation of violation of Sections 2(s) and 16 of the Customs Act, 1969 read with S.R.O. 566(I)/2005 dated 6-6-2005. However, from perusal of the impugned order passed by the Customs Appellate Tribunal, it is noted that the respondent produced all the relevant documents including Registration book etc. in respect of the subject vehicle i.e. Toyota Hiace Van, showing Registration being JF-3697, Chassis No.LH117-0003427, Engine No.3L-3272785 and Model 1992, along with purchase documents and the verification from Excise and Taxation Department about the lawful Registration of such vehicle. After having examined the relevant documents in respect of subject vehicle, the Customs Appellate Tribunal, by placing reliance on the judgments of the Hon'ble Supreme Court of Pakistan in the case of Assistant Director, Intelligence and Investigation, Karachi v. Messrs B.R. Herman and others PLD 1992 SC 485 as well as the order passed by this Court in C.P.No.D-2280/2010 and Spl. Customs Ref. Applications Nos.263/2010, 245/2008 and 253/2008 has allowed the appeal filed by the respondent, by recording finding of fact in the following terms:--

"5. I have examined the case record and heard the arguments of both parties. The Advocate and Consultant for the appellant argued that appellant has legally purchased the impugned vehicle bearing Registration No.JF 3697, Chassis No.LH117-0003427, Engine No.3L-3272785 and Model 1992 (Toyota Hiace Van) from its lawful owner, after proper verification of documents from the Excise and Taxation Department about registration and status of vehicle. When the vehicle was intercepted by the official of Customs Anti Smuggling Squad, Sukkur, the documents of vehicle showed to the seizing agency despite of that the vehicle was seized on the ground of non registration of vehicle. The impugned vehicle was seized at National Highway Babarloe Bypass which is not a border area."

4. Learned counsel for the applicant while confronted with such factual and legal position could not controvert the same nor could point out any error or perversity in such finding of fact. In view of hereinabove, we are of the opinion that the impugned order does not suffer from any error or illegality, whereas, finding of fact as recorded by the Customs Appellate Tribunal does not require any interference by this Court in its reference jurisdiction. Moreover, the decision of the Appellate Tribunal is based on finding on facts, which does not give rise to any question of law, which may require any opinion by this Court. Accordingly, instant Spl. Customs Reference Application being devoid of any merits is hereby dismissed in limine along with listed applications.

MH/C-10/SindhReference dismissed.