' The reference petition under section 196 of the Customs Act, 1969 arises from the judgment dated 6-6-2006 passed by the Tribunal on an appeal filed by the present petitioners.
2. Brief facts leading to the filing of the present proceedings are that cloth of foreign origin was seized by the officials of the Customs Department on 23-11-2005. A show-cause notice was issued and after hearing the petitioners the Adjudicating Authority directed the confiscation of the goods in question vide order in original dated 27-12-2005. Aggrieved the petitioners filed an appeal before the Collector (Appeals), Lahore which was dismissed. Where after the petitioners invoked the jurisdiction of the Tribunal. However, the appeal filed in this behalf was also dismissed vide the order dated 6-6-2006.
3. The learned counsel for the parties have been heard and the record perused.
4. It was the case of the petitioners before the Collector (Appeals) that the cloth seized did not fall within the mischief of section 2(s) of the Customs Act, 1969 and foreign origin cloth has been excluded from the definition of smuggled goods in the light of S.R.O. No,566(I)/05. The Collector (Appeals) accepted the contents of the petitioners, however, upheld the order in original of confiscation on the ground that the cloth seized was not of reasonable quantity. The Tribunal vide its order dated 6-6-2006 also accepted the contentions of the learned counsel in this behalf but again upheld the order of confiscation on the sole and only ground that a large quantity of the cloth has been seized. In the instant case it is alleged that 100288 yards of foreign cloth was recovered. The learned counsel for the petitioners has drawn the attention of this Court to the order dated 18-10-2005 passed by Collector (Appeals) where in similar circumstances where 2,80,000 sq.
Yards of foreign cloth of the same type and origin was not confiscated but was permitted to be redeemed against payment of duties and taxes and a fine of 35 % of the ascertained value. Upon inquiry the counsel for the department as to whether the said order of the Collector (Appeals) has been challenged by the department before the Tribunal or any other forum we were informed that no such appeal was filed and the order was accepted and subject-matter of the said appeal was redeemed and released. This strange dichotomy of stands on behalf of the department defies explanation and is obviously discriminatory. Consequently the petitioners in the instant case is also entitled to the redemption and release of the goods in question subject to payment of leviable duties and taxes in addition to a redemption fine to be determined by the department.
Disposed of in the above terms.