AH TEXTILES VS The DIRECTOR, DIRECTORATE OF INTELLIGENCE AND INVESTIGATION FBR, 2019 PTD-LAHORE-HIGH-COURT-LAHORE 1088 (2019)

Customs Act (IV of 1969)---

----Ss. 196 & 168---Reference to High Court---Confiscation of goods---Scope---Petitioner's trailer was seized by Directorate General of Intelligence and Investigation---Chemical examination of loaded goods revealed that they were not cleared under the goods declaration produced by petitioner---Customs authorities ordered for outright confiscationofgoods---AppealbeforeCustomsAppellateTribunalwas dismissed---Validity---Container from which the goods were seized was different one from which the goods relating to the "goods declaration" presented by the petitioner were imported---Seized goods were 100 percent "polyester" whereas documents produced by the appellant related to import clearance of "nylon", which was different material---Question whether the confiscated goods were actually the goodsimportedbythepetitionerrequireddeterminationoffactswhich could not be done in Reference while exercising advisory jurisdiction by the High Court---Reference was dismissed, accordingly.

Rana Muhammad Tayyab Nazir for Petitioner.

ORDER

Through this Customs Reference filed under Section 196 of the Customs Act, 1969 ("Act"), the petitioner has called in question judgment/order dated 08.10.2018 passed by the Customs Appellate TribunalBench-I, Lahore, whereby the appeal filed by the petitioner was dismissed and prays that by setting-aside the said judgment, the duty paid goods seized bythe respondents be ordered to be unconditionally released.

2.The brief facts of the case are that on 01.12.2016 staff of respondent No.1/Directorate of Intelligence and Investigation-FBR (Customs), Faisalabad("respondent No.1") intercepted petitioner's trailer bearing Registration No.TMA-285. The said trailer along with loaded container was brought to the office of respondent No.1 for detailed examination and production of allied documents. After detailed examination of the consignment, the seizing agency concluded that custom documents produced by the driver of the said trailer are completely irrelevant with regard to description of the recovered goods. Thus the seizing agency after drawing samples forwarded the same to Assistant Chemical Examination, Customs Dry Port, Faisalabad for chemical analysis who vide his letter dated 02.12.2016 reported as under:--

"Samples are found to be dyed pink shade light weight, knitted, mesh fabric, composed of polyester. It has linear weight density of 23-GSM"

The seizing agency on the basis of above said report opined that the loaded goods were not the same which had been got cleared under the produced GD, therefore, the said consignment was declared to be smuggled goods. The respondent No.3 vide order dated 26.05.2017 ordered for outright confiscation of said goods along with the trailer. Feeling aggrieved of the said order, the petitioner filed an appeal before the Customs Appellate Tribunal, Lahore ("Tribunal") which was dismissed vide judgment dated 08.10.2018. The said order is under challenge through instant reference.

3.The learned counsel for the petitioner has argued that the petitioner had paid duty on the goods and produced GD as well as documents for payment of duties against which the same were released, therefore, the respondents were not authorized to seize the goods of the petitioner.

4.The Tribunal, while dismissing the appeal filed by the petitioner, had observed that the container from which the goods were seized was different from the one in which the goods relating to the Goods Declaration presented by the petitioner were imported and repelled the argument of the petitioner that the container had been changed to avoid demurrage. Moreover it has also been observed thatthe seized goodswere100%polyesterwhereasdocumentsproducedby the appellant related to import clearance of nylon which is different material, hence, the goodswerenotthesame.Thequestionwhethertheconfiscatedgoodswereactuallythegoodsimportedbythe petitioner requires determination of facts of the case which cannot be done in a customs reference while exercising advisory jurisdiction of this Court. No question of law is arising, therefore, we decline to answer the same.

5.For what has been discussed above, this Reference being devoid of any merit is dismissed.

SA/A-17/LReference dismissed.