FAZAL AKBAR VS State, 2017 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 492 (2015)

Customs Act (IV of 1969)---

----Ss. 2(KK), 16, 156, 157, 168 & 194-A---Seizure and confiscation of truck loaded with goods of foreign origin, being in contravention of S.16 punishable under Cl.(90) of Ss.156 & 157 of the Customs Act, 1969---Appellant/driver of the truck, had submitted a copy of bill of entry, which matched with the goods as described in the impugned order---Department had not placed on record any material, which could show that said bill of entry was not correct or false---Claim as made by the appellant, was accepted having not been proved to be wrong by the department---Appeal filed by the appellant was accepted and the impugned order with regard to the goods was modified accordingly.

PLD 1972 SC Pages 5 to 10 ref.

Ahsan Baqar for Appellant.

Imtiaz Elahi for Respondent.

Date of hearing: 9th April, 2015.

JUDGMENT

GHULAM MURTAZA BHATTI, MEMBER (JUDICIAL).---The present appeal was fixed before the Division Bench of this Tribunal for disposal according to law but the perusal of record shows that the subject appeal was the jurisdiction of Single Bench therefore, the same was referred to the Hon'ble Chairman for assignment to any Member of this Bench. On 15.01.2015 this appeal was entrusted to the undersigned, for disposal. Arguments have been heard and the Judgment was reserved.

2.This judgment will dispose of Custom Appeal No.01/LB/2015 filed by the appellant against Order-in-Original No.63/2014 dated 05.11.2014 passed by the learned Additional Collector of Customs (Adjudication), Lahore.

3.Brief facts of the case, as reported in the order-in-original are that the Customs Staff, ASO, has intercepted the Truck bearing registration No.QAD-3781 near Police Check Post Gaju Mata Ferozepur Road, Lahore, and found loaded with some bags. The person on driving seat stated his name as Fazal Akhtar. The examination of the said truck was not possible at the spot, therefore, the same was brought in the State Warehouse, Shahnoor Studios, Multan Road, Lahore. Thereafter, examination of the said loaded bags was conducted in the presence of the said driver and other independent witnesses which led to the recovery of the said foreign origin goods. On demand the said driver could not produce any documentary evidence regarding the lawful possession or legal import of the recovered goods. However, provided a duplicate bilty bearing No.660 dated 22.09.2014 which transpired the name of consignee and consignor as Al-Quresh Enterprises, Quetta. Therefore, the said examined goods were detained under section 2(kk) of the Customs Act, 1969 for want of import documents and further investigation. Inspite of a lapse of four days, no one appeared in the office and produced any valid documentary evidence showing legal import of the said examined goods. In view of the above facts there were, thus sufficient reasons to believe that the said examined detained Iran origin goods had been brought into the country in breach of the restrictions and prohibitions for the time being in force by evading duty and taxes leviable thereon. Therefore, on 30.09.2014 the said Iran origin goods were seized under section 168(1) of the Customs Act, 1969, for contravention of the provisions of section 16 ibid punishable under clauses (90) of section 156(1) read with section 3(1) and (3) of the Imports and Exports (Control) Act, 1950 the truck No.QAD-3781 was also seized under section 157 of the Customs Act, 1969 being used for carriage and transportation of the offending goods. On 20.10.2014 and 05.11.2014 Mr. Muhammad Ghafoor Khattak, Advocate on behalf of the respondents and submitted an application for summary adjudication of the case without issuance of show cause notice and showed his willingness to pay duty and taxes leviable on the seized goods. In view of the confession, the charge to the extent that the goods have been brought into the country without payment of duties and taxes stands established, therefore, the adjudicating authority passed the impugned order against which an appeal was filed before this Tribunal on the following grounds:--

(a)That the appellant No.2 is real owner of goods being properly imported quite bill of entry No.2375 dated 24.05.2014.

(b)That the bill of entry is genuine one and there is no doubt that the goods are properly imported and was properly transporting through legal routes and there is no violation of the laws enforce by the time.

(c)That this is well established principle of justice that no one should be deprived by way of penalty or sentence until and unless it is proved that the person concerned is involved some measure in the act of smuggling held by the Honourable Supreme Court of Pakistan in its judgment PLD 1972 pages 5 to 10.

(d)That the version of adjudicating officer at para 5 is denied as the counsel for the petitioners submitted an application for summary adjudication of the case but never offered duty and taxes leviable thereon as evident from the application and released of the vehicle was requested on bank guarantee.

(e)That the vehicle was transporting the goods under proper documents and legal routes and he is not required by the law enforce by the time to examine the validity and mandatory of the documents or goods.

(f)That the appellants are ready to submit the relevant documents examination/verification to the satisfaction of this honourable court.

4.On the other side, the respondent department has not filed the parawise comments in spite of the fact that many dates were given to the department for the purpose. Lastly on 02.04.2015, the right of submitting the parawise comments by the respondent department is closed.

5.I have perused the record and heard the arguments of both the parties and have come to the following conclusion:--

That the appellant has moved an application for decision of the case through summary procedure before the concerned authorities and no where in the said application it has been stated that the appellant is willing to pay the leviable duty and taxes but he has only requested for the disposal of the issue. However this part of the impugned order wherein it is stated that the appellant is willing to pay the leviable duty and taxes is not correct as per the record of the file. The appellant has submitted a copy of bill of entry which matches the goods as described in the impugned order and the respondent has not place on record any material which shows that this bill of entry is not correct or fake. Under the circumstances, the claim as made by the appellant is accepted because it has not been proved wrong by the respondent. Resultantly the appeal of the appeal is accepted and the impugned order with regard to the impugned goods is modified. The appeal is disposed of accordingly.

HBT/144/Tax(Trib.) Order accordingly.