' CH. MUHAMMAD TARIQ, J.---Through the instant Reference, the petitioner has assailed the judgment dated 9-3-2010 passed by Mian Mohammad Hanif Tahir, Member Judicial, Customs Appellate Tribunal, Bench-I, Lahore who modified the judgment dated 30-1-2010 passed by Collector (Appeals) Lahore and passed the following order: "In view of the discussion above, the impugned order dated 30-1-2010 is modified and I order that the confiscated tyres shall be released and handed over to the appellant however subject to payment of duty and taxes as required under the law and redemption fine equivalent to twenty percent of the assessable value. By taking a lenient view the personal penalty is also waived off.
The vehicle bearing Registration No,C-1582 (Dir) is ordered to be released subject to payment of redemption fine amounting to Rs,(100,000) one lac only."
2. .Brief facts of the case are that on 6-10-2009, the Customs staff `ASO' Lahore inspected a Truck No,C-1582 (DIR) which was being driven by Rehmat Afridi son of Khan Ahmad. Two other persons namely Ali Jan son of Lahore Jan of District Kohat and Wajidullah son of Usman Shah of Tehsil Bara, District Khyber Agency were accompanying the driver as second driver and helper respectively.
The examination of the said truck conducted in presence of the witnesses led to the recovery of foreign origin smuggled tyres with tubes. On demand, none of the three persons could produce any evidence in support of lawful possession, legal import or carriage form Peshawar to Lahore of the recovered smuggled foreign origin tyres with tubes, therefore, the tyres were seized and confiscated along with Nissan Truck bearing Registration No,C-1582 (DIR) which was being used for the carriage and transportation of smuggled tyres with tubes. The appeal filed against the confiscation of the goods and the truck was dismissed by the learned Collector of Customs (Appeals), Lahore. Then the matter was agitated through appeal before the learned Customs Appellate Tribunal Bench No,1 Lahore who allowed the appeal and passed the judgment dated 9- 3-2010 as mentioned hereinabove. Hence this petition.
3. Learned counsel for the petitioner has emphasized more on clause (b) of S.R.O. No,499/(1)/2009 which is reproduced below:--
(b) lawfully registered conveyance including packages and containers found carrying smuggled goods in false cavities or being used exclusively or wholly for transportation of offending goods under clause (s) of section 2 of the Customs Act, 1969 (IV of 1969).
4. Learned counsel for the petitioner contends that Appellate Tribunal has erred while passing the order to release the impugned truck against a fine of Rs,100, 000. He argues that the impugned truck falls within the purview of clause (b) of S.R.O. No,499(I)/2009 as the tyres were being smuggled/transported in the cavity of the truck, so the impugned judgment dated 9-3-2010 be set aside and the original judgment dated 30-1-2010 passed by the Collector Customs (Appeals)
Lahore be restored.
5. On the other hand, the learned counsel for the respondent has vehemently opposed this Customs Reference and has fully supported the impugned judgment.
6. Arguments heard. Record perused.
7. The record reveals that the Customs Authorities have failed to establish that the truck in question had remained involved in smuggling previously nor they could provide the detail of other cases in which the above said truck was involved. Admittedly, it was a public transport which was hired and the tyres were transported from one place to another. Learned counsel for the petitioner has argued that the tyres were being smu ggled in cavity of the truck, so it shall be confiscated under clause (b) of S.R.O. No,499 (1)/2009.
8. We are of the considered opinion that the learned counsel for the petitioner has wrongly interpreted the words 'false cavity' which means that a cavity made for the time being or a cavity artificially made. The space behind a truck for loading goods does not fall within the definition of 'false cavity'. So, the learned counsel for the petitioner cannot take benefit of words 'false cavity' because the Customs Authorities have badly failed to point out about any other false cavity made in the truck. Hence, clause (b) of S.R.O. No,499(I)/2009 does not attract in the matter in hand. The learned Appellate Tribunal has rightly adjudged the matter and imposed appropriate penalty on the truck driver. In the circumstance, no interference is called for. The instant custom reference I B is without any substance, hence it is dismissed.