GULAB SHAH AFRIDI, MEMBER (JUDICIAL).---This appeal has been filed on 7-9-2011 against the Order-in-Appeal No.61 of 2011 dated 25-3-2011 passed by the Collector Appeal Customs Peshawar.
2. Brief facts of the case are that on 27-12-2009, the FC troops of Tochi Scouts conducted Anti Smuggling activity near Charkhi Nullah Check Post and stopped smugglers escorting livestock (38 Buffalos and 1 Cow) from Pakistan towards Afghanistan via vill Khaliwal. The owner/ occupant of the live stock identified himself as Rasool Khan who on demand, failed to produce any documentary evidence showing legal export/import. As such the FC troops seized the 39 animals (detailed in the recovery memo.) under section 168 of the Customs Act, 1969 for violation of sections 2(s) and 16 of the Act ibid read with section 3(1) of the Imports and Exports (Control) Act, 1950. Subsequently, after completion of the requisite formalities, the matter was placed before the Additional Collector-II (Adjudication) Custom House, Peshawar, who vide Order-in-Original No.239 of 2010 dated 3-3-2010 ordered outright confiscation of the livestock in terms of clauses (8) and
(89) of subsection (1). Of section 156 of the Customs Act, 1969, read with section 3(3) of the Imports and Exports (Control) Act, 1950.
3. Aggrieved of the impugned Order-in-Original No.239 of 2010 dated 3-3-2010, the appellant has filed appeal before the learned Collector Customs (Appeals), Peshawar, who vide Order-in-Appeal No.61 of 2011 dated 25-3-2011, while maintaining the order-in-original, dismissed the appeal. Hence the instant appeal on the following grounds--
(i) That impugned Order-in-Appeal No.61 of 2011 a long with Order-in-Original No.239 of 2010 is illegal against the law and facts. So the same has got no value to effect upon the valuable rights of the appellant.
(ii) That there is nothing available on record to connect the appellant with the alleged charges of smuggling.
(i.e) That the impugned order-in-original is itself liable to be set aside because the said order has not been passed according to the provision of section 179 of the custom Act, 1969 because show- cause notice was issued on 21-1-2010 _but the order has been issued on 30-10-2010. In spite the fact that last hearing in the said case was fixed on 20-2-2010 so said order is illegal at the face.
(iv) That in this case seizure has been done by an incompetent authority because No power under Custom Act, 1969 for seizure has been given to the FC authorities but the said ground has altogether been ignored.
(v) That the issued show-cause notice is also illegal because before issuance of show-cause notice the seized goods/animals has been put to auction, so, appellant has already been condemned as unheard so No reasons for issuance of the show-cause notice, after auction of the case property has been given besides this at the time of Adjudicating authority is also illegal and is liable to be set aside.
(vi) That, in para "7" of the order in Appeal it has wrongly been concluded that under section "7" of the Custom Act, 1969 the F.C. Authorities could provide assistance to the Custom Officer for presentation of smuggling because such power has already been withdrawn by the Federal Board of Revenue. Besides this is the said case the act of seizure has been done by the F.C. Authorities themselves rather to provide assistance under section "7" of the Custom Act, 1969 so the conclusion drawn by the learned Collector Appeal is against the law and the same is liable to be set aside.
(vii) That as the said goods have been auctioned prior to adjudication, so the appellant has been condemned unheard, and after auction of the case property the issuance of show-cause notice is against the provisions of section 180 of the Custom Act, 1969, but the said point has also not been considered.
(viii) That regarding in legal export of the seized goods no evidence has been provided by the seizing agency and occurrence has taken place inside the Pakistan territory. So no violation of section 2(s) read with section 16 of the Custom Act, 1969 has been done by the appellant and thus the impugned orders are liable to be set aside.
(ix) That goods have been auctioned without notice to the appellant which mandatory under section 201 of the Custom Act, 1969 but the said point has also not been considered.
4. During the course of hearing, the learned counsel for the appellant objected the place of seizure which_ does not show distance from the border area neither the place of occurrence is shown according to Map. The seizure place has been shown in the Seizure Report "Charkhi Nullah Post" which is vague oh the ground that if a person is going to smuggle some items to other country he must avoid 10 cross through any check post. The allegation of export/smuggling to the neighbor country is also false as the same was for local consumption for resolving the issue. Notice was issued to respondent No.4 on 20-12-2011, 30-1-2012, 20-2-2012. On 20-3-2012, the notice was issued to the respondent No.4 with the direction to depute a well versed officer of the unit to defend their case for 14-4-2012 but even then no one appeared on behalf of the respondent No.4 thereafter the case was argued by both the parties. Counsel for the appellant and the DR on behalf of the respondents Nos.1 to 3.
5. During the course of arguments, learned counsel for the appellant, while reiterating the above grounds of appeal, contended that according to the facts narrated in the seizure report, 39 number of animals has been seized on Charkhi Nullah Post, which is by no mean! Correct because neither means of transportation has been shown nor name of any other person except the present appellant has been mentioned in the said seizure report. So the allegation of escorting /transportation of the livestock to Afghanistan is not tenable in the absence of any cogent evidence. He further contended that the said seizure report has been prepared by Lieutenant Col. Syed Husnain Ahmad, whose signatures are very much available on the seizure report but as the occurrence has taken place on 27-12-2009 and in that particular period under S.R.O. 330(1)/2008 no customs/seizure powers were entrusted with the FC authorities, the said seizure is also violation of section 168 of the Customs Act, 1969 besides this the issued show-cause notice dated 21-1-2010 is also illegal as prior to issuance of the said notice, the goods/animals has already been auctioned without issuing notice under section 201 of the Act to the present appellant. So as at the time of the issuance of the show-cause notice no such goods/animals were available, therefore, the charges of smuggling and liable to confiscation of the goods was not possible at all, in absence of the goods but the same has altogether been ignored by the adjudicating authority as well as by the learned Collector Customs (Appeals). He further submitted that as the goods had been seized inside Pakistan without having any evidence of attempt to smuggle the same to Afghanistan are not covered under the definition to section 2(s) of the- Act, hence liable to be released/refund the sale proceed of the same to the appellant unconditionally. The learned counsel also contended that the adjudicating authority while passing the judgment/order-in- original has relied upon judgments of the higher Courts, which has been reproduced in para-5 of the Order-in-Original No.239 of 2011 at page 11 of the order-in-appeal, is not relevant because in the particular judgment mentioned, the order was passed based on the foreign origin of the goods involving the question of duty and taxes but in the present case, goods are animals being seized inside Pakistan, so an incorrect conclusion has been given by the adjudicating authority regarding confiscation of the present goods/animals. He lastly prayed for acceptance of the appeal and setting aside of the impugned orders and requested for unconditional release of the livestock.
6. On the other hand, learned Departmental Representative Mr. Naseer Khan, Deputy Superintendent-opposed the contention of the learned counsel for the appellant and submitted that the livestock was in bulk and seized while on its to way towards Afghanistan. He further submitted that bringing in or taking out any goods in breach of the provisions of the Customs Act, 1969, come within the definition of smuggling, therefore, the impugned orders are correct and require no interference. He prayed for dismissal of the appeal.
7. I have heard both the parties and gone through the record. On perusal of the Recovery Memo.
Prepared by It. Col. Syed Hussain Ahmad (Seizing Officer), mentioned therein that 39 number of livestock (animals) were caught and the smugglers fled away leaving behind the animals (38 buffalos and 1 cow) and on the same page of (Recovery Memo.), while serving notice under section 171 of the Customs Act, 1969, the name of the appellant is mentioned with.Remarks (placed on notice board, refused for signature), which shows that the. Appellant all alone was present on the spot with his animals in the circumstances mentioned in the Recovery Memo., it is not possible for only one person to smuggle the buffalos in large number without mode of transportation. C Further, mentioning in Recovery Memo. That the smuggler fled away leaving behind the animals is also a misstatement by the seizing officer because as alleged in the Recovery Memo. That the smuggler fled away, then from which sources the name of the appellant is shown in the Recovery Memo. And how it is mentioned that refused to signature" in the column of Notice under section 171. Moreover, the pointation of power of seizure under section 168 subsection (1), the 'counsel referred Notification No.S.R.O. 330(1)/2008 dated 31-3-2008, read as under.:-- "In exercise of the powers conferred by section 6 of the Customs Act, 1969 (IV of 1969), the Federal Board of Revenue is pleased to entrust to the officers of the Frontier Corps (N.-W.F.P. And Baluchistan) and Pakistan Rangers (the Punjab and Sindh), specified in column (1) of the Table below, operating within their respective jurisdiction, the functions of officers of Customs under the provisions of the said Act specified in column (2) of the said table to cheek smuggling of rice, pulses of all sorts, wheat and wheat products into (all neighbouring countries). Smuggling of rice, however, shall only be checked on any route other than a route declared under sections 9 and 10 of the said Act.
S.No. Officers Provisions of the Customs Act, 1969 1 2
1. Officers not below the rank of non- Commissioned Officer within their respective jurisdictions158, 160(1) and (2), 168(1) and (3), 172(1) and 174
2. Officers not below the rank of Junior Commissioned Officer within their respective jurisdictions.161(3), (4), (5)(6) and (7), 165(1) and 166
3. Commissioned Officers within their respective jurisdictions.159(2), 160(6), and 163(1) and (4); and
4. Commandant within his jurisdiction 157(2)
8. From perusal of the above S.R.O., the seizing agency having D power to check to the extent of rice, pulses of all sorts, wheat and wheat products into all neighbouring countries on any route other than a route declared under sections 9 and 10 of the Customs Act, 1969. The judgment PLD 1977 Lahore 300, referred by the counsel for the appellant, wherein it has been held that "the goods liable to confiscation can only be seized by an appropriate officer of the Department only authorized in this behalf", is very much relevant, as section 168(1) of the Customs Act, 1969 only empowers an appropriate officer for seizure and in this case the seizure has been made by the F.C.
Authorities being incompetent person in terms of the above section read with S.R.O. 330(1)/2008 dated 31-3-2008, no such authorization for seizure of subject livestock has been entrusted to the seizing agency in this case.
9. In view of the above and perusal of the Notification No.S.R.O. 330(1)/2008, also the judgment (mentioned pnra-8 above) of the honourable superior court, the seizing agency have no power of such seizure and otherwise too, no evidence regarding allegation of smuggling has been established, hence the appeal is accepted and the impugned orders are set aside. As the livestock has been auctioned by the seizing agency, therefore, the sale proceed thereof shall be returned to the appellant. The appeal stands disposed of accordingly.