EJAZ AFZAL KHAN, J.---Imtiaz Ahmad and Muhammad Amjad, appellants herein, have filed this appeal under section 196 of the Customs Act, 1969, against a judgment, dated 8-11-2003 of the learned Customs, Excise and Sales Tax Appellate Tribunal, Peshawar, whereby their appeal was dismissed and order-in-original ,dated 17-5-2003 of the learned Additional Collector (Adjudication) was upheld. The appellants in their appeal have raised the following questions of law:-
(1) Under the facts and circumstances of the case, whereas, show-cause notice issued for violation of clause 90 of the Customs Act, 1969 for the excess goods which are non-notified items and entered in the country through authorized routes and cleared with duty paid goods whether such excess goods come within the purview of section 2 (s) of the Customs Act, 1969, and, the honourable Tribunal justified restraining itself for exercise of its discretion under section 181 of the Customs Act, 1969 because of S.R.O. 374(1)/2002 for releasing the seized goods on redemption fine.
(2) Whether under the facts and circumstances, the impugned order of passing or maintaining outright confiscation of seized goods is not against the principle of consistency where as in numerous cases of excess goods, for being non-notified, are being released on option of redemption fine by the honourable Tribunal and adjudication authorities because of the "loose customs administration" at Sust Customs Station."
2. The learned counsel appearing on behalf of the appellant contended that where it has been mentioned in the show-cause notice that the imported goods were seized from the trucks cleared from the Customs Station Sust, they could not be pushed into the mischief of section 2(s) of the Customs Act, so as to attract the application of notification S.R.O. No,374(1)/2002, dated 15-6-2002.
The learned counsel next submitted that it being a case of clause (b) of the S.R.O. Would call for release of the goods in lieu of confiscation on payment of redemption fine in accordance with the table given thereunder. He next submitted that where the Adjudication. Authority in the exercise of its discretionary powers has released goods on payment of redemption fine in many other similar cases, the case of the appellants could not have been treated with a different yardstick. Exercise of discretion, the learned counsel concluded, being clearly distinguishable from the arbitrary exercise of powers has to be exercised judicially and in accordance with the recognized guidelines laid down by the superior Courts of the country from time to time. The learned counsel to support his contention placed reliance on the cases of Chairman, Regional Transport Authority, Rawalpindi v.
Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 Supreme Court 14), Messrs Kaghan Impex and another v. Central Board of Revenue and another (PLD 1982 Lahore 608), Messrs Bijhama Traders v. The Collector of Customs (Appraisement) and others (1989 MLD 4592) and Abu Bakar Siddique and others v. Collector of Customs, Lahore and others (2006 SCM R 705).
3. As against that, the learned counsel appearing on behalf of the respondents contended that when the goods seized from one of the trucks did not tally with the bill of entry, the only conclusion to be drawn in the circumstances would be that they were smuggled in terms of section 2(s) of the Customs Act, therefore, they were rightly confiscated and that the questions urged by the appellants being one of fact cannot be gone into by this Court in an appeal filed under section 196 of the Act. He next submitted that if at all some goods have been released by some authority or Court in similar cases on account of some error or misunderstanding of law that will not furnish a justification for its repetition and that the impugned finding being free from any error muchless legal is not open to any interference.
4 . We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
5. Before we discuss the merits of the case, it is worthwhile to refer to S.R.O. No,374(I)/2002, dated 15-6-2002, which runs as under:- NO OPTION IN LIEU OF CONFISCATION IN RESPECT OF SMUGGLED, PROHIBITED, BANNED ITEMS AND QUANTUM OF FINE IN CASE OF MISDECLARATION AND ON OTHER OFFENCES.
15 Notification No, S.R.O. 374(1)/2002, dated 15th June, 2002.---In exercise of the powers conferred by section 181 of the Customs Act, 1969 (IV of 1969, and in supersession of the order, dated the 17th December, 1998, the Central Board of Revenue is pleased to order that.---
(a) no option shall be given to pay fine in lieu of confiscating in respect of smuggled goods falling under clause (s) of section 2 of the Customs Act, 1969 (IV of 1969), or goods imported in violation of section 15 of the Customs Act, 1969 (IV of 1969), or banned items notified vide Appendis-A of the Import Trade and Procedures Order, 2000, including job lot and stock lot items where the customs duty is zero per cent or vehicles imported in violation of Import Trade and Procedure Order, 2000.
(b) the quantum of fine in lieu of confiscation shall not be less than the rate specified in column (3) of the Table below:-- S. No.Description Minimum redemption fine on customs value (1)(2) (3)
(a) Offences related to mis-declaration,-- (i)difference between ascertained and declared weight or quantity subject to the condition that30% the percentage difference is more than 5%
(i) Origin 30% (ii)Physical description Other Offences, 30%
(i) Offending goods imported in the bales of second hand clothing imported in violation of provisions of Imports and Exports (Control) Act, 1950 (XXXIX of 1950)25%
(ii) Stock-lot or job lot goods where the duty is not zero per cent imported in violation of provisions of Imports and Exports (Control) Act, 1950).15% (iii)Goods not covered under clause (b) of rule 4 of sub-Chapter 1 of Chapter II of the Customs Rules, 2001 brought by incoming passengers (accompanied or unaccompanied) in non-commercial quantities for actual use and not intended for sale in market.Nil (iv)Old and used machinery parts or components imported by the industrial importers for their plants, if not importable in terms of relevant Import Trade Procedure.25%
(v) Old and used spare parts and accessories, if imported along with the second hand plant and machinery used in manufacturing of goods.25% (vi) Imported scrap items which contain old and used or serviceable components such as auto parts and compressors etc., if the same are allowed release after cutting, pressing, piercing, breaking or otherwise of deshaping to the satisfaction of the Customs Authorities on specific request of the importers subject to the condition that expense incurred on such processes are paid by the importer.
6. A perusal of the S.R.O. Would reveal that no option could be given to an owner of the goods, to pay redemption fine in lieu of confiscation under section 181 of the Customs Act, if they were found to have been smuggled in terms of section 2(s) of the Customs Act. Now question arises whether the goods seized can be covered by section 2(s) of the Act so as to attract the application of the S.R.O. Mentioned above. We have not doubt in our mind that the goods seized do not fall within the purview of section 2(s)(i) and (ii). But they certainly fall within the ambit of 2(s)(iii), as there is no evidence whatever to prove that they were brought through the route declared under sections 9 and 10 of the Customs Act. The mere fact that the goods subsequently found and seized from one of the trucks would not prove that they were brought through the declared route. Had they been, they would have tallied with the bill of entry. When they did not, they shall be deemed to have been smuggled from a route other than the one declared under sections 9 and 10 of the Customs Act.
Question of their release in the exercise of the discretionary powers on payment of redemption fine in terms of .Section 181 of the Customs Act would not arise, when such powers in view of the S.R.O.
Mentioned above, have been taken away in respect of the goods falling within the ambit of section 2(s). No authority after the issuance of the said S.R.O. Has been left with any powers to release such goods on payment of redemption fine. If, in spite of the said S.R.O., any authority or a Court of law has exercised such powers, it being wrong altogether would not furnish a justification for its repetition. For only that decision or precedent shall have binding force which is consistent with the relevant statute. The one which is against that statute or is rendered in ignorance thereof because of being per incuriam, will have no binding force, even if, given by a superior Court of the country.
Let alone the one given by an authority or a Court at the lower stratum. In the case of Burhanuddin v. Chairman ADBP rendered in Writ Petition No,340 of 2006 decided on 5-10-2006, this Court while dealing with an almost identical argument held as under:-- "Granted that equality before law is the supreme ideal for the Courts of law but it does not mean that a benefit which should not have been extended to any, if extended to one, would furnish a justification for its extension to another. For commission of one wrong or two or any number thereof cannot furnish a ' justification for yet another. Similarly two wrong precedents would not legalize an act which is void from the very inception . "
7. The judgments rendered in the cases of Chairman, Regional Transport Authority, Rawalpindi v.
Pakistan Mutual Insurance Company Limited, Rawalpindi, Messrs Kaghan Impex and another v.
Central Board of Revenue and another, and Messrs Bijhama Traders v. The Collector of Customs (Appeasement) and others (Supra) will have relevance only when an authority has discretionary powers but has refused to exercise them or has not exercised them judicially and in accordance with the guidelines vouchsafed by the superior Courts of the country. But where the discretionary powers of the authority in view of the S.R.O. Mentioned above issued under section 181 of the Customs Act, have been taken away, question of their exercise will not arise. The case of Abu Bakar Siddique and others v. Collector of Customs, Lahore and others (Supra) too will not support the case of the appellants, as it relates to a period when the discretionary powers given under section 181 of the Customs Act were not yet taken away by virtue of the S.R.O. Mentioned above.
8. When considered in this background, the finding given by the E learned Appellate Tribunal being in conformity with the law is not open to any interference.
9. For the reasons discussed above, this appeal being without substance is dismissed and the questions thus raised are answered accordingly.