SHAFI ULLAH VS ADDITIONAL COLLECTOR OF CUSTOMS (ADJUDICATION), PESHAWAR, 2019 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 739 (2018)

Customs Act (IV of 1969)---

----Ss. 2(s), 16, 156(1)(8), 156(1)(89), 168, 179 & 187---Imports and Exports (Control) Act (XXXIX of 1950), S.3---Smuggling---Seizure and confiscation---Accused an Afghan national, was apprehended near the Boarder allegedly smuggling Pakistan currency, out of Pakistan---Additional Collector of Customs (Adjudication) vide order-in-original confiscated the recovered currency---Validity---Appellant was an Afghan national and had entered into Pakistan through valid documents---Nothing was available on file to ascertain that the appellant's intention was to go out of Pakistan---No doubt burden of proof as to the lawful possession of the goods was on the person committing offence under S.187, Customs Act, 1969, but said section came into force when the initial burden of commission of an offence was discharged by the prosecution---Order passed by the adjudicating authority was set aside by the Tribunal.

Muhammad Hayat Khan for Appellant.

Muhammad Zahid, Superintendent/D.R. for Respondents.

Date of hearing: 1st August, 2018.

JUDGMENT

SYED SARDAR HUSSAIN SHAH, MEMBER (JUDICIAL).---This appeal is filed by Shafi Ullah son of Muhammad Azam (herein after called appellant) against the Order-in-Originals Nos.100-112 of 2015, dated 28.12.2015 of the Additional Collector of Customs (Adjudication), Islamabad, Camp Office, Custom House, Jamrud Road, Peshawar.

2.Briefly stated the facts of the case are that on 09.09.2015, during the course of routine Anti Smuggling duties at Torkham Check Post, F.C staff of Khyber Rifles recovered Pakistani Currency amounting to Rs.6,80,000/- (details as per Recovery Memo. No.238/2015, dated 09.09.2015). The seized Pakistani currency was being smuggled from Pakistan to Afghanistan without valid documents. On demand, the appellant failed to produce any legal documents in respect of the said currency. Therefore, the same was seized under the provisions of Section 168 of the Customs Act, 1969 for violation of Sections 2(s) and 16 of the Customs Act, 1969 read with Foreign Exchange Regulation Act, 1947 and further read with Section 3(1) of the Imports and Exports (Control) Act, 1950 punishable under Section 156(1) Clauses (8) and (89) of the Customs Act, 1969 read with Section 3(3) of the Imports and Exports (Control) Act, 1950. The case papers were submitted for adjudication in terms of Section 179 of the Customs Act, 1969.

3.Subsequently, a Show-Cause Notice was issued to the appellant on 14.10.2015. The learned Additional Collector of Customs (Adjudication), Islamabad, Camp Office, Customs House, Peshawar vide Order-in-Originals Nos.100-112 of 2015, dated 28.12.2015, mutatis mutandis applied the same order to the case of the appellant (then respondent), and outrightly confiscated the recovered amount. Hence the instant appeal to this Tribunal.

4.I have heard Mr. Muhammad Hayat Khan, learned Advocate for the appellant as well as Mr. Muhammad Zahid, Superintendent/D.R, for the respondents and gone through the record of the case.

5.In this case the Major, Anti Smuggling Officer Frontier Corps (FC), Headquarter along with the troops of Khyber Rifles during routine checking recovered Pakistani Currency amounting to Rs.6,80,000/- at Torkham Check Post from an Afghan national as per the passport available on this file. The appellant entered into Pakistan through valid documents. Many Afghan nationals are living in Pakistan and some are visiting through visas for business purposes and medical checkups. Torkham is a business Hub, and there are Markets and commercial activities where/business is in abundance. Counsel for the appellant produced a letter of the Collector Customs, Peshawar addressed to Inspector General, HQ Frontier Corps (North), Qilla Balahisar, Peshawar, referred SRO.1090(I)/2010, dated 01.12.2010, wherein the Anti Smuggling powers of the officers of FC Corps, KP are subject to the conditions:-

(i)The functions shall be limited within 20 kilometers of the International Border.

(ii)The functions shall exclude the city Municipal limits, Customs area, Customs Station, Ports, Borders Customs Station, International Airports and Bonded Warehouses, etc.;

Torkham is a declared customs area/customs station, reflects that, the currency was not seized near the border or if it is, then it was by an unauthorized official and without lawful authority. On the other hand there is nothing on file to ascertain that the appellant's intention was to go out of Pakistan or he was present at Torkham for some business activity. With reference to Section 139 of the Customs Act, 1969, specifies that the owner of any baggage shall make a correct declaration of his baggage to the appropriate officer of Customs, not below the rank of Intelligence Officer, Inspector, Prevention Officer, Senior Prevention Officer and Examination Officer. So, it can be safely presumed the appellant had no intention to go out of Pakistan, as the appellant has not been snapped at the scanning point, neither an opportunity of declaration of the baggage and amount had been afforded, which clearly shows that the appellant was not going out of Pakistan. No doubt the burden of proof as to the lawful possession of the goods is on the person committing an offence under Section 187 of the Customs Act, 1969, but this section come into force when the initial burden of the commission of an offence is brought by the prosecution. In this case the prosecution miserably failed to establish that the appellant was taking Pakistani currency out of Pakistan. I see no substantial cogent and convincing evidence in this appeal to convince me that the said amount was being taken out of Pakistan by the appellant. In these circumstances, the case of the prosecution is of doubtful nature.

6.In view of the above discussion, I allow this appeal, set aside Order-in-Originals Nos.100-112, dated 26.12.2015 of the Additional Collector of Customs (Adjudication), and direct the respondents to release the amount to the original owner/appellant on production of proper and valid documents i.e. passport and valid visa within 15 days from the date of receipt of this judgment. This case is disposed off accordingly.

SA/78/Tax(Trib.)Appeal allowe