' ROZI KHAN BURKI, MEMBER (TECHNICAL).---This appeal has been filed by Kaibat Khan son of Taj Muhammad Khan (hereinafter called as the appellant) against the Order-in-Appeal No,350 of 2011, dated 30-9-2011, passed by the Collector of Custom (Apals), Peshawar.
2. Precisely, the stated facts of the case as recapitulated from the available record are that in pursuance of prior information, the Customs Mobile Squad No,1, Peshawar, intercepted a Hino Truck bearing Registration No,E-9469, at Ring Road, Peshawar, on 20-4-2011, and recovered foreign origin scrap (details as per Recovery Memo No,119/2011, dated 20-5-2011). Since, on demand the occupant of the vehicle/goods namely Kaibat Khan failed to produce and proof with regard to legal import and lawful possession of the scrap so recovered, therefore, the same was seized along with the vehicle by the customs staff under section 168 of the Customs Act, 1969 (hereinafter called as the Act) for violation of sections 2(s), 16 and 157 of the Act, read with section 3(1) of the Imports and Exports (Control) Act, 1950, punishable under section 156(1), (8) and (89) of the Act, read with section 3(3) of the Imports and Exports (Control) Act, 1950, and the case papers were submitted for adjudication in terms of section 179 of the Act. Subsequently, on adjudication of the matter, the Deputy Collector of Customs, Anti-Smuggling Division, MCC, Custom House, Peshawar, vide his Order-in-Original No,107 of 2011, dated 19-7-2011, ordered outright confiscation of the seized scrap in terms of section 156(1), (8) and (89) of the Act, read with section 3(3) of the Imports and Exports A (Control) Act, 1950. The local scrap which has not been mentioned in the recovery memo was ordered to be released unconditionally. The subject vehicle, used for transportation of smuggled goods was also confiscated in terms of section 157 of the Act. However, taking a lenient view, he released the same on payment of redemption fine @ 20% of its customs value in terms of S.R.O.
499(1)/2009, dated 13-6-2009.
3. Being aggrieved of the above order-in-original, the appellant went in appeal before the learned Collector of Customs (Appeals), Peshawar, who vide his Order-in-Original No,350 of 2011, dated 30- 9-2011, upheld the impugned Order-in-Original No,107 of 2011 dated 19-7-2011. Hence the present appeal filed by the appellant to this. Tribunal on the following grounds:--
(a) that order of learned respondent No,1, is illegal, against the law and facts of the case, hence liable to be set aside;
(b) that the order of learned respondent No,1 is the result of misreading and non-reading of evidence available on file, hence liable to be set aside;
(c) that appellant is the representative of Messrs Khyber Steels and unloaded the scrap from vehicle and stored in Godaam at Chughal Pura. Peshawar and later on forward the same according to the need of Messrs Khyber Steels:
(d) that appellant had provided/handed-over the original triplicate copies of IGM No,1652, dated 17-3-2011, IGM No,/Machine No,7027, dated 9-4-2011 and IGM No,1848, dated 28-3-2011, to the seizing officer but he did not heed to these document and returned back to the appellant;
(e) that both learned respondents did not bother to verify these G.D. Nos. From the concerned quarter and deny the genuine of these documents in a surmise manner; that Messrs Khyber Steels is a regular importer of iron scrap/auto-part scrap and imported then goods through proper route and proper documents after payment of all leviable duty/taxes;
(g) that both learned respondents relied on the meeting may be held with Association of Sarhad Scrap Dealers and then Assistant Collector of Customs, Peshawar and both respondents considered them as elected representative but then Assistant Collector of Customs, Peshawar clearly mentioned in the report that "they claimed that that they are representative of Sarhad Old Scrap Dealer Association, yet according to the visiting card, the association is neither registered nor the notified office bearers of the so-called association. The participations represent only their own cause". Moreover, the so-called association nor the then Assistant Collector of Customs, Peshawar informed the scrap dealers about the decision;
(h) that the appellant produced all the relevant documents of import of seized goods and now the burden of proof is on the prosecution to establish/prove that these goods are smuggled one; and
(i) that appellant may be allowed to put-forward any other documents/argument at the time of hearing.
4. On the date of hearing fixed on 23-5-2012, Mr. Waliullah, Advocate, the learned counsel for the appellant reiterated the same arguments as advanced in his memo. Of appeal and also put-forth before the earlier forums. Additionally, he produced copies of GDs wherein the seized scrap was stated to be legally cleared from Torkhan on payment of leviable duties and taxes. On referring the said GDs to the departmental representatives, they could neither accept nor reject the genuineness of the contents and simply showed their doubts that the GDs might be relating to some scrap legally imported. However, they could produce nothing in support of their contention.
The counsel and the petitioner who was also present during hearing established the link of a few days earlier legal import through notified route of Torkham and stated that they imported the scrap and dumped in the stores located on Ring Road and took the required quantity of scrap to their melting unit but on the way the customs squad seized the same without considering the fact that it was legally imported.
5. I went through the case papers and examined the written record and verbal submissions made by both the parties and came to the conclusion that although the appellant produced copies of GDs as evidence to prove legal import of the seized scrap, it was not sufficient to prove the fact whether the seized scrap was the same as shown in the GDs. On the other hand the DR also could not prove that the seized scrap did not belong to the GDs produced. In view thereof this question remained unanswered and the doubt still remained there, I, therefore, feel no hesitation in holding that the onus of proof has changed to the department and the department failed to disprove the, contents of the GDs. I, therefore, set aside the impugned Order-in-Appeal No,350 of 2011, dated 30- 9-2011, and order unconditional release of the seized scrap to its rightful owner.
6. This judgment consists of three (3) pages and each page bears my official seal and signature.
7. Announced.