MUHAMMAD NAWAZ ABBASI, J.--- Leave, in this petition is sought against the judgment dated 30.12.2003 passed by the Peshawar High Court in a custom appeal arising out of the judgment of the Customs Appellate Tribunal.
2. The black tea, in huge quantity, loaded in a truck owned by the petitioners, was taken into custody by Naurang Police, in the area of Naurang Police Station (Lukki Murrawat) on the ground that tea was being brought into Pakistan through Miran Shah in an unauthorized manner, without payment of customs duty. The local police after registration of a case under Section 156(1)(89) of Customs Act, 1969, and completion of preliminary investigation, handed over the matter to the Customs Authorities for further action under Customs Act, 1969. In consequence to the adjudication proceedings, the Additional Collector (Adjudication) held that tea was smuggled and confiscated the same, vide order dated 11.2.2002 but in the appeal filed by the petitioners before the Customs, Excise and Sales Tax Appellate Tribunal, the confiscation order was set aside by the Appellate Tribunal and department then filed an appeal before the High Court in which the order of Appellate Tribunal was set aside and that of confiscation of goods was restored. The petitioners assailed the judgment of the High Court before this Court in CPLA No. 419-P of 2002 which succeeded. The petition was converted into an appeal vide judgment elated 26.11.2002 and the case was remanded to the High Court for decision of the question of law involved in the customs appeal. The High Court in post-remand proceedings again by setting aside The order of Appellate Tribunal maintained the order of confiscation of goods passed by Additional Collector (Adjudication) and allowed the appeal of department, with the observation that the tea being of foreign origin, was brought into Pakistan without payment of customs duty and was smuggled.
3. The learned counsel for the petitioners has raised the following contentions in support of this petition:-
(a) There was not an iota of evidence in support of the allegation that the lack tea seized by the police, was of foreign origin which was brought Into Pakistan through an unauthorized route without payment of duty and being covered by the definition of 'smuggling' under Section 2(s) of the Customs Act, 1969, was liable to be confiscated.
(b) The goods were purchased from the local market and petitioner in proof thereof also placed on record the receipt of the purchase of tea but the Customs Authorities without verifying the correct factual position and discharging the initial burden of proving the smuggled nature of the tea confiscated the same under the provisions of Customs Act, 1969 by raising presumption under Section 187 of the said Act.
4. Learned counsel for the respondent-caveator, on the other hand, has contended that no doubt the goods were seized in the settled area but the same were brought into Pakistan through Afghan Border from unauthorized route and consequently, a presumption would be raised under Section 187 of the Customs Act, 1969 that the black tea was of foreign origin which was brought into Pakistan without payment of customs duty and that the goods were rightly confiscated on the failure of the petitioners to prove their lawful possession and payment of customs duty on the seized goods.
5. We having heard the learned counsel for the parties, find substance in the contentions raised by the learned counsel for the petitioners and consequently, grant leave in this petition to consider the following questions in the light of the relevant provisions in the Customs Act, 1969:-
(a) What was the proof of the confiscated black tea being of foreign original, which was brought into the Pakistan without payment of duty and would be treated smuggled in terms of Section 2(s) of the Customs Act, 1969?
(b) Whether the sale of black tea of the kind which was seized and confiscated as smuggled, was prohibited in the open market and its transportation in commercial quantity inside the country was restricted or that possession of such tea at large scale would ipso facto be an evidence of it being smuggled?
(c) Whether, without discharging the initial burden of proving the smuggled character of the goods by the department, a presumption under Section 187 of the Customs Act, 1969 can be raised qua the nature of goods?
(d) Whether the High Court has properly attended the questions of law involved in the customs appeal as directed in the remand order by this Court?
6. The appeal shall be heard, on the present record with permission to the parties to bring on record additional documents in support of their respective stance.