NAZAR MUHAMMAD VS The COLLECTOR OF CUSTOMS (APPEALS), PESHAWAR
2019 P T D (Trib.) 147
[Customs Appellate Tribunal]
Before Syed Sardar Hussain Shah, Member (Judicial)
NAZAR MUHAMMAD
versus
The COLLECTOR OF CUSTOMS (APPEALS), PESHAWAR and 2 others
Appeal No. Cus. Remand No.233/PB of 2016, decided on 06/04/2018.
Customs Act (IV of 1969)---
----Ss. 157, 168 & 201---Seizure and confiscation of vehicle---Customs staff seized a Truck and the driver of the Truck at the time of seizing, produced an Afghan Road Pass---Truck was confiscated and on appeal impugned order was set aside and Truck was released to the owner, with direction, that same should be re-exported to Afghanistan under proper customs escort---Customs Authorities, however, auctioned the Truck and sale proceeds was handed over to the Attorney of the appellant/owner of the Truck---Demand notice was issued to the appellant for refund of duty and taxes which was not deducted from the sale proceeds---Assistant Collector (Auction Cell) ordered the appellant to deposit the duties and taxes---Appeal the appellant before the Collector of Customs (Appeals) was dismissed---Validity---Order of Collector of Customs (Appeals), whereby the Truck was restored to its owner, and its re-export to Afghanistan, was not challenged by the Customs Authorities before any forum and the same had attained finality---Appellant, was not liable to pay the duty and taxes as the Collector of Customs (Appeals), had restored the Truck to its owner---Duty of the Customs Authorities was to first collect the expenses of sale, then pay the freight or other charges if any payable in respect of the goods then to pay the customs duty, other taxes and dues payable and thereafter the balance, if any was to be paid to the owner of the goods---Impugned order-in-appeal, passed by Collector of Customs (Appeals) and order-in-original passed by Collector (Appeals) and order-in-original passed by Collector (Auction Cell), were set aside and appeal was allowed.
Muhammad Rafique Mohmand for Appellants.
Musa Khan, Superintendent Customs for Respondent.
Date of hearing: 6th April, 2018.
JUDGMENT
SYED SARDAR HUSSAIN SHAH, MEMBER (JUDICIAL).---This appeal has been remanded by the Hon'ble Peshawar High Court, Peshawar for decision afresh by this Tribunal.
2.This appeal is filed by Nazar Muhammad appellant through Attorney of Shahab-ud-Din against the order dated 19.09.2013 of the Collector of Customs (Appeals), Rawalpindi, Camp Office, Jumrud Road, Peshawar, whereby dismissing the appeal of the appellant confirmed order dated 13.02.2013 of the Assistant Collector (Auction Cell), Model Customs Collectorate, Custom House, Jamrud Road, Peshawar.
3.Briefly stated the facts of the case are that the Customs staff on seizing of Hino Truck bearing Registration No.KBL-34496, Chassis No.FD3-HLA-14272, Model 1990, on 06.01.2010 at Peshawar. The Driver of the vehicle at the time of seizing produced an Afghan Road pass No.4881/11/2009, which was valid up to 04.02.2010, and without considering the validation of the Road Pass, the vehicle was confiscated vide Order-in-Original No.88/2010, dated 19.02.2010. On appeal the Collector (Appeals) set aside the impugned order and released the vehicle to the rightful owner vide his order dated 07.04.2010, with the directions, that the same should be re-exported to Afghanistan under proper Customs escort upto the Customs Station Torkham. Meanwhile the Customs authorities auctioned the vehicle and sale proceeds i.e. Rs.17,96,850/- was sanctioned in the name of Shahab-ud-Din son of Watan Gul (Attorney Holder) which he received.
4.On 11.05.2012, a demand notice was issued to the appellant for refund of duty and taxes as the same was not deducted and the whole proceed was handed over to the appellant vide his order dated 13.02.2013. The Assistant Collector (Action Cell) ordered the appellant to deposit the duties and taxes. Aggrieved by the order dated 13.02.2013 of Assistant Collector (Auction Cell), the appellant filed an appeal to the Collector of Customs (Appeals), Rawalpindi, Camp office, Jamrud Road, Peshawar who vide his order dated 19.09.2013, dismissed the appeal by upholding the order dated 13.02.2013 of the Assistant Collector (Auction Cell). Being aggrieved the appellant filed an appeal before this Tribunal.
5.I have heard learned counsel Mr. Muhammad Rafique Khan for the appellant as well as Mr. Mussa Khan, Superintendent/D.R for the respondents and gone through the record of the case with their assistance.
6.In view of the submissions by the learned counsel for the appellant as well as by the Departmental Representative of the respondents, it is clear that order dated 28.04.2010 of the Collector of Customs (Appeals), Rewalpindi, whereby the vehicle was ordered to be restored to its rightful owner, and its re-exported to Afghanistan under proper Custom escort upto the Customs Station, Torkham. The order dated 28.04.2010 was not challenged by the respondents/Customs authorities in any forum and the same attained finality. The appellant requested Customs authorities to comply with the order dated 28.04.2010. The appellant did not know that his vehicle has already been auctioned and the Customs authorities instead of vehicle paid him Rs.17,96,850/- as sale proceed and without deduction of duty and taxes. The appellant is not liable to pay the duty and taxes as according to order dated 28.04.2010, the Collector of Customs (Appeals), Rawalpindi, restored the vehicle to its rightful owner. According to law, It is the duty of the Customs authorities to, first collect the expenses of sale, then pay the fright or other charges if any payable in respect of the goods then to pay the customs duty, other taxes and dues payable and thereafter the balance if any shall be paid to the owner of the goods. The representative of the respondents was questioned as to whether any action was taken against such negligent officer who had not cared about the legal provisions provided under Section 201 of the Customs Act, 1969, he replied in negative. Section 201 of the Customs Act, 1969 is reproduced as under:-
201. Procedure for sale of goods and application of sale proceeds.---(1) Where any goods, other than confiscated goods, are to be sold under any provision of this Act, they shall be sold after due notice to the owner [or his agent or custodian of the goods] by public auction or by tender or by private offer or, with the consent of the owner [or his agent or custodian of the goods] in writing, in any other manner.
[(1A) The goods may be sold under subsection (1) through electronic means, as prescribed by the Board under the rules.]
(2) The sale proceeds shall be applied to the following purposes in their respective order, namely:-
(a) first to pay the expenses of the sale;
(b) then to pay the freight or other charges, if any, payable in respect of the goods, if notice of such charges has been given to the person holding the goods in custody;
(c) then to pay the customs-duty, other taxes and dues payable to the [Federal Government] in respect of such goods;
(d) then to pay the charges due to the person holding such goods in custody.
(3) The balance, if any, shall be paid to the owner of the goods. provided he applies for it within six months of the sale of the goods or shows sufficient cause for not doing so.
7.In view of the above discussions, this appeal is allowed and the impugned Order-in-Appeal No.473/2013, dated 19.09.2013 of the Collector of Customs (Appeals), Rawalpindi, Camp Office, Custom House, Jamrud Road, Peshawar and Order-in-Original No.01/2013, dated 13.02.2013 of the Assistant Collector (Auction Cell), Model Customs Collectorate, Custom House, Jamrud Road, Peshawar are set aside. This case is disposed off accordingly.
HBT/30/Tax(Trib.)Appeal allowed.