CHAUDHARY MUHAMMAD TARIQ, ,CHAIRMAN.,- (1). This appeal has been directed against the Order-in-Original dated 1.6.04.2014 passed by Additional Collector Customs (Adjudication), Islamabad.
2. Brief facts of the case are that on 18.12.2013 the Anti Smuggling Staff of the Directorate General Intelligence and Investigation-FBR Islamabad Intercepted a trailer bearing Registration No. JU-4788 near Khorr Distt. Attock which was coming from Karachi. The driver of the said vehicle identified himself as Muhammad Ayaz S/o Muhammad R/o Rahim Yar Khan. On query, he informed that Misc.
Goods are loaded in the container and in support he produced some GDs/Bilities in respect of loaded Misc. Goods. However, in order to materialize the information, cursory checking of the container was conducted in presence of driver and it was found loaded with Indian Black/Green Tea, Iranian Dairy Whey Milk Powder without accompanying any supporting documents of transportation. Therefore, the said Trailer alongwith loaded container was brought to the SWH of the Directorate General situated at G-12, Islamabad for detailed checking. At the time of checking at SWH, the trailer driver produced GDs/Bilities showing import of Black/Green Tea and Iranian Milk Powder. But the consigners of these goods were not found tallied with the importers name mentioned in the GDs. Therefore, the said goods were detained under section 17 of the Customs Act, 1969 with the approval of competent authority for further verification of legal import and payment of duty/taxes etc. Notice under section 26 of the Customs Act, 1969 was also served upon the drivers/representative of the said Truck who were also directed to produce import documents of impugned goods within four days.
3. A Show. Cause Notice was served on four persons except the appellant and the matter was referred to the adjudicating authority who adjudicated upon the matter and passed the order in original against Sajawal Khan S/o Misri Khan representative of New Burq Transport Company Ganjmandi Rawalpindi, (2) Muhammad Ayaz S/o Muhammad Azam C/o New Burq Transport Company Ganjmandi Rawalpindi (Trailer Driver), (3) M/s. Nafees Tea Store and Muhammad Ayub paracha C/o New Burq Transport Company Ganjmandi Rawalpindi, (4) Lahore General Store Bility No. 008549 and 008552, Gamkol Karyana Store bility No. Po.1- 1738 C/o New Burq Transport Company Ganjmandi Rawalpindi, the operative part of the impugned order has been reproduced as under:-- "In the light of aforementioned stance of the prosecution, I am of the considered view that the stance of the prosecution carries weight. The documents produced by the said firm seems to be fake because no satisfactory reasons have been explained by respondent. Therefore, I order for confiscation of the said item in terms of clause (89) (90) of the Customs Act; 1969, however, taking a lenient view, I, order to redeem the same in terms of section 181 of the Customs Act, 1969 to its lawful owner on payment of duty/taxes leviable thereon and redemption fine of 30% of the Customs Appraised value of the seized cassia whole (Dal Chenni) in lieu of confiscation.
As far as the claim regarding the legal import of the item mentioned at Sr. No. 12 of the Seizure report i.e. 06 Nos. Of lucky Years Tyres claimed by (M/s. Humayu 'n Brothers. Rawalpindi) is concerned, the prosecution commented that the claimant produced GD No. KAPWHC-56680 dated 07.11.2013, wherein M/s. Burki Tyres Karachi is an importer. The invoice has been produced at belated stage. Therefore, it is requested that the claimant/importer may please be require to produce original sale/purchase registered alongwith payment record for the verification of the business activities. As per "Taxpayer online Verification", the claimant is a service provider only instead of dealer/distributor/retailer of tyres. Hence invoice in isolation of the documents has no evidential value in circumstance of the case. It is pertinent to mention here that during the hearing proceedings, the required sales purchase register and payment record for verification of business activities were not supplied, therefore, I, conclude that the respondents have managed the documents to give legal shelter to his seized consignment. The charges leveled against respondent stand established. Therefore, I, order for confiscation of these six (06) Nos. Of Tyres in terms of clause (89) (90) of the Customs Act, 1969, as tyres are notified in terms of section 2(s) (ii) of the Customs Act, 1969 but the total customs appraised value as per Barack-up/Calculation Sheet of the same is Rs. 73,140/-, which is less than Rs. 150,000-- (the statutory limit) so that section 2(s) (ii) of the Customs Act, 1969 is not attracted here, I, therefore, order to redeem the same in terms of section 181 of the Customs Act, 1969 to its lawful owner on payment of duty/taxes leviable thereon and redemption fine of 30% of the Customs Appraised value of the seized Tyres in lieu of confiscation".
4. Feeling aggrieved the appellant has assailed the order in original in this appeal on the grounds mentioned in the memo. Of appeal and has prayed that the impugned order against the appellant be set aside.
5. Conversely the DR has opposed this appeal on the grounds that the appellant is not a necessary party. No Show Cause Notice was issued to the appellant and further contended that appellant did not attach Sales Tax Invoices. Therefore, the appellant be ordered to pay evaded amount of duty/taxes anti appeal be dismissed.
6. Arguments heard record perused. Attending to the objection raised by the DR that appellant is not a necessary party as no Show Cause Notice was issued to the appellant. When confronted the DR agreed that despite all the above facts the appellant are aggrieved party who has been directed to pay evaded amount of duty/taxes.
7. In the light of conceding statement of DR that appellants are aggrieved party. The objection raised by the DR is overruled because any person who is aggrieved by an order passed by the A Adjudicating Officer can assail the order of Adjudicating Authority in appeal may be he was not a part before the Adjudicating Authority. Relied on law laid down by the Honorable Supreme Court of Pakistan in case Sahib Dad vs. Province of Punjab reported as 2009 SCM R 385.
8. Perusal of para 8, 9 of the order in original highlights that the adjudicating officer not only discused the conduct of appellant but also passed adverse orders against him thereafter a legal right accrued in favor of appellant to file the instant appeal. The contents of para 8 & 9 of the order in original are reproduced hereunder:-- As far as the claim regarding the legal import of items mentioned at Sr. No. 08 to 10 of the seizure report i.e. Lucky Batter Cells claimed by (M/s S.S. Corporation, Karachi) is concerned, the prosecution state in this connection as under:- "m/s. S.S Corporation booked Dry Battery Cells under bilities Nos. 8550, and 8552 in the name of Lahore General Store, and attached with GDs vide Nos. KAPW-HC-32237 dated 14.09.2013, KAPW- HC-67963 dated 13.12.2013, KAPE-HC-32631 dated 22.10.2013 but they did not attach Sales Tax Invoice to the buyer. Now he stated in his written statement that Lahore General Store requested for cancellation of above stated order due to personal reasons. The same is now treated as an afterthought to evade duty/dates"
After going through the produced documents and discussion between the parties, I am of the considered view that request for cancellation of order placed due to personal reason is an after thought. The stance of prosecution carries weight, the same is therefore, accepted. The charges leveled against respondents stand established. The same are outright confiscated in favour of the state in terms of clause (89) (90) of the Customs Act, 1969.
9. The next question is again the admission of the DR that before passing the impugned order in original the appellants were never served with any Show cause notice it is further confirmed from the Show Cause Notice dated 10.01.2014 that show cause notice was never served to the appellant.
10. Right to be heard is a fundamental right. It is not confined only to judicial proceedings but extends to all proceedings may be they are judicial, quasi judicial or administrative. The maxim "No one shall be condemned unheard". Extends to all proceedings which may effect, the person or property or other rights of parties concerned in the dispute and the maxim will apply with full force.
Order passed without show cause notice to appellant is illegal and ineffective to the extent of appellant. Relied on law laid down by the Honorable Supreme Court of Pakistan in case Commissioner of Income Tax versus Fazal.Ur-Rehman etc. Reported as PLD-1964 Sc 410.
11. In the above circumstances this appeal is accepted, impugned order in original dated 16.04.2014 is hereby set aside.
12. Announced.
13. Parties may be informed accordingly.