MUHAMMAD QAIM JAN KHAN, J.---A show-cause-notice was issued on 30-5-2006 to petitioners Nos.1 and 2 in which it has been alleged that "....Illegal export was managed clandestinely by you being, the proprietors of Messrs Frontier International Customs Agency by filing GD-I's Forms Nos.10320 and 20321, dated 2-2-2006 for exportation of 80 M. Tons of "Family" brand vegetable Ghee on behalf of Messrs Pan Asia Food and Vegetable Ghee Hattar (Haripur) and all of you, with the connivance of your representatives/authorized sub-agents, drivers, cleaners of the said vehicles have not only retained the consignment of Vegetable Ghee somewhere within country loaded in two trailers (22 wheelers) Regn Nos.1023-KAB and 1025-KAB boarded with (2x40) containers but illegally exported/smuggled 80 M. Tons (1600 bags) Chemical Fertilizer in two ten wheelers trucks bearing the same Reign Numbers."
2. Both the petitioners duly submitted replies to the show-cause notice but the Additional Collector Customs Peshawar without considering the petitioners' submissions passed the impugned Order- in Original No,682 of 2006, dated 30-12-2006 and the operative part runs: "9. Record of the case has been examined and the arguments put further by the respondents have been duly considered. It is observed that the Collectorate has detected a case of forged and manipulated export of Ghee and when confirmed from the country of import i,e, Afghanistan it was evidently established that 80 M.
Tons of Urea Fertilizer has entered Afghanistan on 2-2-2006 on payment of duty/taxes. The respondents has instead shown export of vegetable Ghee on the same identification of vehicles bearing Registration Nos. KAB-1025 and KAB-1023 on 2-2-2006. As such a clear nexus has been established and a separate case of rebate claim filed by the respondents on account of so-called export of vegetable Ghee also stands rejected vide order-in-original No,19 dated 26-6-2006 passed by the Assistant Collector.
2A. In view of these undeniable facts and circumstances of the case involvement of trucks Registration Nos.KAB-1025 and KAB-1023 stands established beyond any doubt. Hence these trucks are hereby confiscated outrightly under section 157 of the Customs Act, 1969. Further, the role of Messrs Pan Asia has also been established in committing this illicit and violative acts of commission, hence penalties of Rs,2,00,000 each are also imposed upon the following persons under section 156 (1) (8) (89) of the Custom Act, 1969:-
(i) Messrs Pan Asia Food and Vegetable Ghee Industrial Estate Hattar (Haripur).
(ii) Mehar Shad and Sohail Numan, Proprietor of Messrs Frontier International Customs Agency r/o Zaryab Colony Raheel Flat No,6 Peshawar.
(iii) Rehmat Ullah owner of truck Registration number KAB-1025.
(iv) Tila Muhammad owner of truck Registration number KAB-1023."
3. Aggrieved from the impugned Order-in-Original to the extent of confiscation of their vehicles and imposition of penalty of Rs,200,000 each, petitioners preferred an appeal before the Collector Appeals Customs, Federal Excise and Sales Tax, Peshawar which is still sub judice.
4. It so happened that during the pendency of the appeal, the Assistant Collector Customs State Warehouse, Peshawar issued auction notices on 24-3-2007. Petitioners vide their application dated 7-4-2007 requested the said Assistant Collector, Customs State Warehouse to stop the auction proceedings till final decision of the appeal pending before the Collector Appeals but the Assistant Collector State Warehouse showing no respect to the stay order issued by Collector Appeals, auctioned the vehicles on 11-4-2007 at the price of Rs,2.3 million and 2.9 million in favour of respondent No,4 although the market value of each vehicle is more than Rs,4 million.
5. The petitioner served a legal notice, dated 19-4-2007 on Assistant Collector Customs State Warehouse and Additional Collector Customs for stopping the auction proceedings but of no avail, hence this petition.
6. We have heard counsel for the petitioners at length and have also perused the record.
7. Admittedly the appeal of the present petitioners is pending before the Collector Appeals Customs. Moreover, the said Court has also issued a stay order which was turned down by the Assistant Collector State Warehouse for no obvious reason. So, as the appeal is pending and proper stay order has been issued, the Assistant Collector State Warehouse and Additional Collector Customs are directed to stop the auction proceedings and if the auction proceedings has taken place, they are further directed not to dispose of the vehicles till the disposal of the appeal pending before the Collector Appeals Customs and further Collector Appeals Customs is directed to dispose of the appeal within one month from the date of this order. Petition disposed of accordingly.