HAFIZ STEEL FURNACE VS DIRECTORATE OF INTELLIGENCE AND INVESTIGATION FBR, 2017 PTD-LAHORE-HIGH-COURT-LAHORE 761 (2017)

(a) Customs Act (IV of 1969)---

----S. 156(1)(89)---S.R.O. No.499(I)/2009 dated 13-06-2009---Smuggled goods, confiscation of---Importer had admitted smuggling of the goods as he had requested for their release against payment of duties and tax along with some suitable fine---Revenue department objected to the release of the goods as the same fell within the ambit of "smuggled goods" hence, their release would be derogatory to S.R.O. No.499(I)/2009 dated 13th June, 2009---Order of adjudicating authority with regards to outright confiscation of the smuggled goods in terms of S. 156(1)(89) of the Customs Act, 1969 was upheld---Reference was disposed of accordingly.

(b) Customs Act (IV of 1969)---

---S. 156(1)(89)---S.R.O. No.499(I)/2009 dated 13-06-2009---Confiscation of vehicle transporting smuggled goods---Legality---Trailer/transport vehicle (on which smuggled goods were being transported) could not be confiscated as a strict and necessary consequence, in absence of any evidence of involvement of the owner or driver thereof in the impugned offence---Outright confiscation of trailer, in the present case, tantamount to travesty of justice---High Court directed that the trailer should be released unconditionally to its lawful owner---Reference was disposed of accordingly.

(c) Customs Act (IV of 1969)---

----S. 196---Reference before High Court---Scope---While exercising jurisdiction in terms of S. 196 of the Customs Act, 1969 the Court was required to examine only question of law, which may arise from the order passed by Customs, Excise and Sales Tax Appellate Tribunal, whereas, the question of fact could not be examined under its reference jurisdiction.

Messrs Pak Suzuki Motor Company Limited, Karachi v. Collector of Customs Appraisement Collectorate, Custom House, Karachi 2015 PTD 2600 ref.

Javed Saleem for Applicants.

ORDER

This is a Reference under Section 196 of the Customs Act, 1969 (the "Act").

2.Following question of law is proposed for our opinion, which is asserted to have arisen out of judgment dated 22.11.2016 of the Customs Appellate Tribunal Bench-II, Lahore (the "Appellate Bench"):

QUESTION OF LAW

Whether the learned Tribunal acted in violation of its own orders dated 16.08.2016, whereunder, the collector of Customs, Multan was directed "to constitute a committee under the auspices of the relevant Deputy Collector and the said committee shall conduct a detailed re-examination of the impugned vehicle rims with regards to their size, condition and make/origin and a report thereof shall be submitted before this tribunal...." But the committee merely recorded its "conclusion by consensus" to the effect that "The examined consignment is comprising of totally old and used wheel rims of different sizes 12, 13, 14 and 15 without packing and without marking of the country origin". The said report of the committee could not be taken as "a detailed re-examination" in the light of the Tribunal's order dated dated 16.08.2016 but still the learned Tribunal relied, upon the said report in the impugned judgment?

3.The learned Appellate Bench has rightly observed in para-graph 11 of the impugned judgment that there is an admission on the part of the Applicants to have the smuggled goods as the learned counsel for the Applicants requested for the release of impugned rims against payment of duties and taxed along with some suitable fine but on the other hand the learned counsel for the Respondents objected to the release on the context that vehicle rims fall within the ambit of smuggled goods hence, their release would be derogatory of S.R.O. 499(I)/2009 dated 13th of June 2009. We agree with the findings of the learned Appellate Bench which in the impugned judgment in paragraph 18 has observed that the transport vehicle cannot be confiscated as a strict and necessary consequence of smuggled goods, in absence of any evidence of involvement of the owner or driver thereof in the impugned offence, consequently outright confiscation of impugned trailer in the instant case tantamount to travesty of justice. It was further observed that the order of the adjudicating authority with regards to outright confiscation of the impugned vehicular rims in terms of Section 156(1)(89) is upheld. However, the impugned vehicle/trailer carrying registration No.TLF-300 is ordered to be released unconditionally to its lawful owner.

4.We have heard that learned counsel for the Applicants and find that the question of law as argued by the Applicants does not arise in this case as the interpretation given by the Appellate Tribunal is clearly in accordance with law. Reliance in this regard is placed on the case titled Messrs Pak Suzuki Motor Company Limited, Karachi v. Collector of Customs Appraisement Collectorate, Custom House, Karachi (2015 PTD 2600) in which it was held as follows:--

"We may observe that while exercising jurisdiction in terms of section 196 of the Customs Act, 1969 the Courts are required to examine only question of law, which may arise from the order passed by Customs, Excise and Sales Tax Appellate Tribunal, whereas, the question of fact cannot be examined under its reference jurisdiction. Reference in this regard can be made to the case of Gold Trade Impex v. Appellate Tribunal of Customs, Excise and Sales Tax, Excise and Sales Tax reported in 2012 PTD 377, wherein it has been held as under:--

"18. Before giving our opinion on the common questions proposed through instant reference applications, we may observe that in terms of section 196(1) of the Customs Act, 1969 and in view of the judgments of superior Courts on the subject, only substantial questions of law, arising out of the order of the Tribunal, can be referred for opinion of this Court through reference application whereas questions of disputed facts cannot be examined by this Court under reference jurisdiction "A point of law" could not be equated with expression "question of law", whereas a question of law referred for opinion of this Court in real scene must be a disputed or disputable question of law. We may further observe that the questions of law referred for opinion by this Court must be formulated in such a manner that the reply to such question referred to this court may be either in affirmative or negative and it should normally settle a pattern of guidance both for the Revenue as well as the assessee. Factual, controversies should not be allowed to be converted into legal issues only by employing legal language in such a manner which is usual to the forming of such questions. References in this regard can be made to the case of Commissioner of Income Tax v. Messrs Immion International, Lahore 2001 PTD 900 and Japan Storage Battery Limited v. Commissioner Income Tax 2003 PTD 2849. Further reliance can be made to the cases reported as Collector of Customs, Port Muhammad Bin Qasim, Karachi v. Kaghan Ghee Mills (Pvt.) Ltd. reported in 2008 SCMR 1538 and Collector of Customs v. Qasim International Container Terminal (Pak.) Ltd. reported in 2013 PTD 392 (SHC)."

5.Under the circumstances, we decline to exercise our jurisdiction. Reference application is decided against the Applicants.

6.Office shall send a copy of this order under seal of the Court to the Appellate Tribunal as per Section 196(5) of the Act.

MWA/H-1/L Order accordingly.