Chaudhary Muhammad Tariq, Chairman.--(1). This appeal has been directed against the Order- in-Original dated 09.01.2012 and Order-in-Appeal No. 67/2012 dated 05.06.2012 passed by the Collector (Appeals) Customs, Islamabad.
2. Learned counsel for the appellants inter alia contends that allegedly the appellant arrived from Abu Dhabi at Benazir Bhutto International Airport, Islamabad through flight No. EY-231, where 15.600 KGs of gold was recovered from the appellant during his body search and on demand of the customs staff, he could not produce any documentary evidence showing legal import or lawful possession of the recovered gold. The appellant was arrested and a regular criminal case was registered against him with I & P Branch of the Model Customs Collectorate Rawalpindi, vide FIR No. 17/2011 dated 10.06.2011 further contends that a Show Cause Notice was issued to the appellant and it was alleged in the same that the appellant had brought aforementioned gold in violation of Section 2(s) and Section 139 of Customs Act, 1969 read with section 3(1) of Imports and Exports (Control) Act, 1950 punishable under section 156(1) 8, 70 and 157, 178 of Customs Act, 1969 and the recovered goods were seized accordingly. The appellant appeared before Respondent No. 02 and submitted his written reply alongwith all the relevant documents. After hearing both the sides, the Respondent No. 2 was pleased to pass the aforementioned impugn Order-in-Original outrightly confiscating the seized gold and imposing a penalty of Rs. 50,000,00/- on appellant.
3. The appellant preferred an appeal against Order in-Original dated 09.01.2012 which was dismissed on 05.06.2012 by Collector Customs (Appeals), Islamabad. Hence this appeal on the following grounds:
(a) that the impugned orders are against law and facts of the case and are a result of misreading/nonreading of the evidence available on the record.
The impugned orders are illegal and both the court below committed material irregularity, by not applying their minds judiciously, while adjudicating upon the matter in question. The appellant has not violated any provisions of law as mentioned in the aforementioned Show Cause Notice. There is nothing on the record available with the prosecution which could prove that the appellant was availing the facility of green channel. Furthermore, he emphatically declared the goods and asked the authorities to charge the amount of duty payable on recovered goods. The seizing officer was required to record any such declaration electronically which he purposefully did not in the hope of earning rewards. The absence of electronic copy of declarations not only portrays the malafide of seizing officer but also asserts the fact that the story put forward by him is absolutely apocryphal in nature. Moreover, it is a settled law that mere possession of an article which is dutiable or which is even restricted, prohibited or notified is not an offence, so long as a true declaration has been made under Section 139.
(c) The observation of Respondent No. 02 regarding movement of appellant towards exit is based upon conjectures and surmises and is not corroborated by the CCTV footage.
(d) The observation of Respondent No. 02 about misdeclaration of appellant is based on surmises as the conversation between Customs Officials and the appellant is not audiable and no such conclusion could be drawn from the video of the incidence. The absence of audio recording is a fault for which the administration and Customs Officials posted at Airport are fully responsible. It evidently shows their malafide and also an attempt to mold the events in their favour.
(e) The presence of video footage alongwith the other electronic equipment at BBI Airport clearly shows that Customs Computerized System was fully operational at the place of occurrence and same was not utilized just to conceal and suppress the actual facts in the absence of electronic form of declaration, the benefit of doubt, according to law, certainly should go in favour of Appellant.
(f) Both the courts below miserably failed to consider the fact that the gold can be brought into Pakistan as accompanied baggage vide Foreign Exchange Manual issued by the State Bank of Pakistan and is freely importable item even in bulk according to Import Policy Order, 2009, hence the first part of Section 2(s) clearly does not attract to the case of appellant. As far as the question of evading payment of Customs Duties and taxes leviable is concerned, it is submitted that the appellant never attempted to evade the same in any manner, whatsoever. His approach to red channel indicates that he declared to pay duties and taxes leviable thereon. This very fact has already been admitted by the prosecution witnesses and was accepted as true by the Respondent No. 02 in the following words:- "At 02-46-52 hrs the passenger identified in the video as Respondent No. 01 with one black small trolley suitcase is seen walking directly towards the red channel. Mr. Arif Zaman Deputy Superintendent had not directed him."
(g) The recoverable goods are freely importable items and not banned and same were brought into the country through a notified route and a notified Customs Station, hence the same cannot be deemed to be smuggled.
(h) The perusal of statements of prosecution witnesses recorded before the learned Additional Collector, Customs AFU Building, Airport, Islamabad clearly reveals that all of them agreed that petitioner was not given his legal rights in violation of provisions of Section 139 and 159 of the Customs Act, 1969 and further it is also obvious that the respondent was not provided with an opportunity to be searched before a gazetted officer or a magistrate making search and seizure illegal. He was availing the red channel with clear intentions and declared goods to pay duties and taxes being a law abiding citizen. The instant case is based on malafide and has nothing to do with the actual facts.
4. Learned counsel for the appellant further contend that the appellant has been acquitted in criminal case which was lodged against him vide FIR No. 17/2011 dated 10.06.2011 registered with Police Station, Collectorate of Customs, Rawalpindi. Learned counsel has also focused on the prosecution witnesses and stated that in the criminal case star prosecution witnesses were not produced which show the mala fide on the part of prosecution and it also establishes that the entire case against the appellant is fake but the above aspects were altogether ignored by both the forums below, therefore, appeal be allowed as prayed and both the impugned orders be set aside.
5. Conversely the DR has vehemently opposed the appeal and contended that there is a concurrent finding of two forums below against the appellant who minutely dismissed and scrutinized the same arguments of appellant. Further contends that the appellant had never tried to contact the appropriate Customs Officer for recording declaration of recovered gold, although the said officers were present before the scanner. Which it was only due to the intervention of Customs Staff that the further movement of the appellant towards the exit was halted and search process was initiated which result, recovery of seizure of gold. Further stated that counters are available in the hall for all those passengers who are diverted by the customs staff from whom dutiable items are recovered at scanners. He further contended that at scanner no physical checking of passengers is carried out. It is the only luggage which is scanned but in the instant case the seized gold was concealed by appellant in secret pockets and vest under the shirt and not in trolley or suitcase. All it was done to avoid the detection of gold through routine inspection of customs staff. Learned D.R. Further argued that no customs computerized system is operational at the place of incident for making electronic declarations of accompanied baggage. He further stated that gold is a notified item under clause (2) of Customs Act, 1969 and under SRO No. 266(I)/2001 dated 07.05.2001 which could only be imported through entrustment scheme by filing GDs after approval of competent authority. He also supported both the impugned orders and prayed that the appeal may be dismissed.
6. Arguments heard. Record Pursed. Learned Counsel for the appellant commenced his arguments from the registration of criminal case No. 17/2011 dated 10.06.2011 registered with Police Station Collectorate of Customs Rawalpindi under Sections 2(s) 156 sub-section (1) (8) (70) of the Section 157 of the Customs Act, 1969 and contended that the appellant has acquitted from the criminal case by the competent court. He further contended that star prosecution witnesses of the recovery were not produced in the court. Resultantly the court acquitted accused/appellant. The judgment of acquittal is a proof of innocence of appellant and seizure of gold by the respondents and all subsequent proceedings against the appellant have no legal sanctity further he has also taken the plea that there was no restriction on the import of gold and while carrying gold the appellant himself came to the red channel which shows the bona fide of appellant The gold is importable under law but before making declaration the appellant was intercepted by the customs authorities and made a false and fake case against the appellant. He further contended that same could be verified from the footage recorded by the video cameras installed in the Rawal Lounge area and thereby the customs authorities violated provisions of Section 159 of Customs Act, 1969.
7. I he learned counsel for the appellant further argued that the appellant is also entitled under the entrustment scheme announced vide SRO 266(1)/2001 which entitle the appellant to pay the duty and taxes on the imported gold. He has further taken the plea that the appellant purchased the gold from Dubai spending his foreign exchange at Dubai. In the instant case the Pakistan Currency was not spend in purchase of gold and prayed the appellant is an innocent person, the impugned orders passed both the forums below are arbitrary without any lawful authority be set aside.
8. So far as the arguments of the learned counsel for the appellant is concerned that the appellant had acquitted in the criminal case on the ground that the prosecution have not produced star witnesses of recovery hence the impugned orders be set aside in the light of judgment of acquittal.
The above plea is not tenable, the result of criminal case has neither any nexus with this appeal nor it could be made basis of determining the fate of this case. Order of acquittal or non production of prosecution witnesses at the most could be used for confrontation purposes, the case in hand will be decided exclusively on its merit.
9. The next argument of the learned counsel for the appellant was that the appellant bona fide imported the gold as there was no ban on the import of gold is also not correct because under SRO 266(1)/2001 dated 07.05.2001, gold is a notified item. It is also restricted to be imported in the country under Section 156-9(1) of Customs Act, 1969 unless legal formalities are fulfilled. Import Policy Order, 2009 issued under SRO 766(1)/2009 dated 04.09.2009 Section 6 of the above policy was also made in line with SRO 499(1)/2009 read with Section 156-9(1) of the Customs Act, 1969 which reproduced hereunder:-- Prohibitions and restrictions imposed under other Laws.--Notwithstanding anything contained in this Order, the prohibitions, restrictions, conditions and requirements as prescribed under any other law, Act or rules, for the time being in force shall be applicable, mutatis mutandis, on specified imports.
10. Apart from legal aspects of this case, the conduct of the appellant was that he while traveling to Pakistan hide the gold in the secret cavities of Slooka wearing under his clothes and tried to exist from passenger lounge. This Tribunal particularly asked from the learned counsel for the appellant about the production of any receipt of purchase of gold or import documents which learned counsel frankly admitted that no such document is available with him or with the appellant. Rather learned counsel for the appellant further informed this court that appellant is a carrier of currency since long time who had been carrying currencies for many agencies including Government, Semi Government and Private. Answering to the query by this Tribunal learned counsel further admitted that the appellant is not a registered importer with the Sales Tax Department as an Importer of gold jeweler and Gem Stones while for foreign import of gold, the above requirement is mandatory.
It is also not denied that while importing the above huge quantity of gold, the appellant had never informed the customs authorities about his arrival or import of gold. It is also not denied that the gold was imported by aiding under the clothes.
11. The arguments of the learned counsel of the appellant that the search of the appellant was not conducted in terms of Section 159 of Customs Act, 1969 has no force because in the above circumstances the way gold was recovered there is no illegality committed by the customs authorities and further when there is admission by the appellant himself that from his Salooka gold weighting 15.600 Kgs was recovered thereafter the presence of the Magistrate was not necessary even otherwise the above gold and money was seized from appellant in presence of five persons namely, 1) Manzoor Begum, Superintendent Customs 2) Arif Zaman Dar Dy. Superintendent Customs 3) Tasweer-e-Mustafa, Inspector Customs 4) Muddassar Hassan, Inspector Customs 5)
Shakeel Ahmed, Inspector/I0. All the above detecting staff are gazetted officers.
12. Learned Counsel for appellant has argued this issue on a considerable length that appellant is a carrier, who used to carry currency on behalf of Government, Semi Government and other agencies. The above fact was also not denied by the respondents. Therefore, we have no hesitation to derive from the argument learned counsel for appellant that the owner of Gold has not come forward to claim the possession of Gold. The above submission of learned counsel is further strengthen from the circumstances and admission, that appellant do not possess, the receipt of purchase of Gold or any other import document.
13. The upshot of the above discussion is. That the recovered gold is notified item which was imported in Pakistan unlawfully without adopting due course of law by carrier. The appellant is not a registered importer of gold with the Sales Tax Department and the seizure of the gold was rightly made.
14. The impugned orders passed by both the forums below have no illegality or infirmity. The Gold was rightly seized and confiscated recovered from the carrier. However, keeping in view the status of appellant being a carrier the amount of penalty is reduced to Rs. 1000000/- (One Million Only).
15. Assistant Registrar of this Tribunal is directed to send a copy of judgment to the Collector Customs, Islamabad requiring him to initiate proceedings against the recovery witnesses of criminal case FIR No. 17/2011 dated 10.06.2011 registered with Police Station Collectorate of Customs, Rawalpindi that, why they did not appear in the criminal case which resulted the acquittal of appellant. This Tribunal be also intimated about the result of inquiry.
16. Announced.
17. Parties may be informed accordingly.