' YAHYA AFRIDI, J.---Through this Reference, Petitioner, Aqil Khan, seeks opinion of this Court on the following questions of law:-
(I) Whether an order passed by an Hon'ble Court with the consent of both the parties, can be trifled with by the customs hierarchy?
(II) Whether the Customs hierarchy can travel beyond the confined of a remand order passed by the August Supreme Court, again with the consent of both the parties?
(III) Whether the proceedings before the Special Judge, of a criminal nature, or any part thereof, can be legally transposed to adjudicatory proceedings before the Customs authorities?
(IV) Whether a seizure effect on 6-9-1997 can be governed by: ' CGO No, 18 of 1998 ' S.R.O. 1374(1) of 1998 dated 17-12-1998 ' S.R.O. 225(I) of 2007 dated 17-3-2007 ' S.R.O. 499(1) of 2009 dated 13-6-2009 ' and whether these can be given retrospective effect Court with the consent of both the parties, can be trifled with by the Customs hierarchy?
(V) Whether the order in remand of the Customs hierarchy are perforce legally limited to the adjudication only of the issues within the parameter of Section 181 of the Customs Act, 1969 and on the dicta enunciated in 2006 SCMR 705?
(VI) Whether the impugned orders of Customs hierarchy are sustainable despite the gross legal infirmities?
2. The essential facts leading to the present petition and necessary for this Court to render its opinion on the questions of law raised and stated hereinabove, in chronological order, are as follows:-- 6-9-1997.
' Petitioner Aqil Shah on his arrival at Peshawar Airport from Dubai and on search of his personal baggage, was found to be carrying 400 Tolas of gold, which was seized and accordingly, FIR No,61/1997 was registered under Section 156(1)(8)(89), 15, 16 read with Section 2(s) of the Customs Act, 1969 ("Act").
22-2-2007.
' The Adjudication proceedings culminating in an appeal filed by the present petitioner before this Court in terms that:- "4. After some detailed arguments, the learned counsel for respondents submitted that, in order to amicably resolve the issue of this gold case and without conceding the stand of the respondents in principle, the respondents would have no objection to the return of the gold slabs to the appellant if he pays the customs duty and reasonable penalty under-the law. He was further of the view that the appellant had the option to request for taking the gold slabs back out of Pakistan.
5. The appellant supported by his learned counsel stated at the bar that the appellant was ready to pay the customs duty and reasonable penalty in accordance with law if the Forty Gold slabs mentioned above were ordered to be returned to him.
6. In accordance with the statement of the learned counsel for the parties, we accept the present appeal, direct the respondents to receive the customs duty and reasonable penalty from the appellant in accordance with law, and return the 40 gold slabs, each weighing ten tolas, to the appellant after such payment. The present appeal is disposed of accordingly."
19-1-2009.
' The Revenue impugned the decision of this Court before the apex Court, wherein both the parties made joint statement, which was recorded in writing and placed on record in terms that:- "We, the counsel for the parties agreed that the case may be remitted back/remanded to the adjudicating Officer/Collector Peshawar directing him to decide the case afresh in accordance with the law laid down by this Hon'ble Court in 2006 SCMR 705 and in accordance with the provisions of S.181 of the Customs Act, 1969. "
' In pursuance of the joint written statement, the apex Court disposed of the appeal of the Revenue in terms that:- "After arguing the matter at some length, learned counsel for the parties has placed on record statement signed by both of them whereby they are agreed that the case be remitted back/ remanded to the Adjudicating Officer/ Collector, Peshawar with direction to decide the case afresh in accordance with law laid down by this Court in the case reported as 2006 SCMR 705 and in accordance with the provisions of Section 181 of the Customs Act, 1969.
2. Accordingly, the appeal is disposed of in terms of statement filed by learned counsel for the parties."
21-8-2013.
' The adjudication proceeding directed by the August Court culminated in a decision of the worthy Tribunal dated 14-5-2013, which was dispatched to the petitioner on 30-5-2013 and challenged by the petitioner vide the Customs Reference No,38-P/2013.
12-11-2013.
' The Customs Reference No,38-P/2013 was allowed to be withdrawn with permission of this Court to file a fresh one.
7-12-2013.
' The instant Reference No,53-P/2013 was filed clearly enumerating the questions of law sought to be opined by this Court in the instant Reference.
3. The stance of the present petitioner was that Section 181 of the Act, made it obligatory upon the confiscating custom officer to render an option to the petitioner to pay the prescribed penalty along with duties and taxes in lieu of the confiscation of the gold; that there was no order of FBR restraining the confiscating custom officer under the proviso 2 of Section 181 of Act not to render the option in lieu to the confiscation; and that the judgment of the apex Court in Abu Bakar Siddique's case (2006 SCM R 705) was truly applicable to the facts of the present case and the option directed in the said case ought to be also followed in the instant case.
4. In rebuttal, the worthy counsel for Revenue emphasized that this Court has in its earlier decision, Sultan Muhammad's case (2015 PTD 570), elaborately discussed the issue in hand and rendered its opinion as following the earlier decisions of this Court in Gul Jan's case (SAO 25 of 2005 decided on 9-12-2010) and Daulat Khan's case (Customs Reference No,27/2010); and that the true import of Abu Bakar Sididque ' s case (supra) clearly lays down that the option has been clearly excluded in cases, such as gold, which cannot be allowed to be circulated in the market or the goods which are imported in violation of Section 15 or the notification issued under Section 16 of the Act.
5. At the very outset, it has to be noted that in the present case, the seizure of gold was made on 6- 9-1997, and thus the law, as it stood on the said date, would prevail and govern the controversy, regarding the opinion sought in the instant Reference.
6. It is further noted that on the said date CGO No,18 of 1998 nor S.R.O. 1374(I) of 1998 dated 17-12- 1998, S.R.O. 225(I) of 2007 dated 17-3-2007, and S.R.O. 499(I) of 2009 dated 13-6-2009, were not in the field. The matter was to be decided, as per consent of the parties and the directions of the apex Court on the provisions of Section 181 of the Act.
7. It is also to be noted that, the opinion rendered by this Court in Sultan Muhammad's case (supra), cannot be applied to the facts and circumstances of the present case, as seizure in the said case was dealt with SRO 499 issued by FBR under Section 181 of the Act, while in the present case no such relating SRO was in the field, when the seizure took place.
8. Now, before we proceed further, it would be appropriate to review the provisions of Section 181 of the Act, which is read as under:-- "Option to pay fine in lieu of confiscated goods: Whenever an order for the confiscation of goods is passed under this Act, the officer passing the order may give the owner of the goods an option to pay in lieu of the confiscation of the goods such fine as the officer thinks fit.
'Explanation. Any fine in lieu of confiscation of goods imposed under this section shall be in addition to any duty and charges payable in respect of such goods, and of any penalty that might have been imposed in addition to the confiscation of goods: Provided that the Board may, by an order, specify the goods or class of goods where such option shall not be given: Provided further that the Board may, by an order, fix the amount of fine which, in lieu of confiscation, shall be imposed on any goods or class of goods imported in violation of the provisions of section 15 or of a notification issued under section 16, or any other law for the time being in force "
9. Our opinion on the questions of law are as follows, in seriatim:--
(10) Whether an order passed by an Hon'ble Court with the consent of both the parties, can be trifled with by the customs hierarchy?
(11) Whether the Customs hierarchy can travel beyond the confined of a remand order passed by the August Supreme Court, again with the consent of both the parties?
OPINION: Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 ordains all to follow the directions so rendered by the Apex Supreme Court. Thus there is no cavil to the proposition that, a direction rendered by the apex Court and that too, on the consent of the parties has to be followed.
Accordingly, it is concerted opinion of this Court that, the Adjudicating Authorities under the Act, had to follow the directions of the apex Court and decide the matter in accordance with the decision of the apex Court in Abu Bakar Siddique's case (supra) and section 181 of the Act.
(III) Whether the proceedings before the Special Judge, of a criminal nature, or any part thereof, can be legally transposed to adjudicatory proceedings before the Customs authorities?
OPINION.
It is by now settled that findings recorded by the Special Judge, while proceeding under section 185-A of Act in trying offences punishable thereunder are independent and in no way binding upon the Customs Authorities adjudicating cases under Section 179 of the Act.
This principle has been dealt with by the Supreme Court of our jurisdiction in Adam's case (PLD 1969 SC 446), Muhammad Sarwar's case (1988 PCr.LJ 213), Sabro's case (1992 PCr.LJ 1795) and finally affirmed by the apex Court in Mehmood Ahmad Qureshi's case (2002 SCMR 1527), in terms that:-- "It is an established law that criminal proceedings, before Special Judge are judicial proceedings while proceedings conducted before Custom Authorities relating to adjudication are in the nature of departmental proceedings, though in certain cases they emanate from the same subject-matter, yet, they are independent to each other and not necessarily, the findings recorded by Special Judge shall always control the findings recorded by the Customs Authorities relating to adjudication proceedings. These proceedings go side by side but do not mingle."
Accordingly, the findings of the Special Judge, while proceeding against the present petitioner in the criminal case, were erroneously considered and relied upon by the Adjudicating authority in proceeding against the petitioner in the departmental adjudication culminating in the impugned decisions before this Court.
(IV) Whether a seizure effect on 6-9-1997 can be governed by:-- CGO No. 18 of 1998 S.R.O. 1374(1) of 1998 dated 17-12-1998 S.R.O. 225(1) of 2007 dated 17-3-2007 S.R.O. 499(I) of 2009 dated 13-6-2009 and whether these Nis be given retrospective effect Court with the consent of both the parties, can be trifled with by the Customs hierarchy?
OPINION.
The SROs relied upon by the Revenue having adverse effect upon the rights of petitioner, could in no way be construed retrospectively, and thus would apply prospectively.
This legal issue has been thoroughly discussed by this Court in Commissioner Inland Revenue v.
Roohul Amin, University Book. Agency (W.P.No.39/2012), decided on 18-6-2014, the relevant portion of which reads as under:-- "No doubt, the changing provisions imposing taxes are to be strictly construed in favour of the taxpayer, so that if there is doubt or two interpretation, then it has to be resolved in favour of the taxpayer. While the provisions, which provide for the machinery by which taxes are assessed and recovered are to be liberally construed in favour of the Revenue, in order to ensure that the realization of proper taxes is made possible. The apex Court in Eli Lilly's case (Supra), went on to impose a 'rider'to the later principle by stating that: "However, in our view, the provision is impregnated with an essential attribute, which affects an accrued right of an assessee or a taxpayer that after efflux of a certain period of time, his assessment will not be opened or amended. Thereafter, the section cannot be applied retrospectively unless the legislature has by express words or necessary implication intended to give it retrospective effect."
(emphasis provided)
(V) Whether the order in remand of the Customs hierarchy are perforce legally limited to the adjudication only of the issues within the parameter of Section 181 of the Customs Act, 1969 and on the dicte enunciated in 2006 SCMR 705?
(VI)Whether the impugned orders Customs hierarchy are sustainable despite the gross legal infirmities?
OPINION Admittedly, as stated earlier, the matter in dispute was to be dealt with as per provision of Section 181 of the Act as enunciated in Abu Bakar Siddique's case (supra). While considering the facts of the said case, it is noted that the seizure of 200 rennies of gold each weighing 10 Tola was made on 2-1-1988. Like in the present case, there was then no ban on import of gold, however, the import policy ordained its import by registered persons.
' The apex Court, while considering the word "may " provided in Section 181 of the Act, interpreted the same in terms that: "The use of word 'may' in section 181 of Customs Act, 1969 cannot be read for 'shall' but at the same time the concerned officer in absence of any compelling reasons, must not withhold the exercise of the discretion of giving an option to the owner of goods under said section for redemption of goods in lieu of payment to fine, except in the cases in which goods cannot be allowed to be circulated in the market or the goods which were imported in violation of Section 15 or of the notification issued under section 16 of the Customs Act, 1969."
' However, while finally deciding the case, the apex Court struck down the inaction of the confiscating custom officer not to render an option to the owner of the seized gold in terms that:-- "10. In plain words, smuggling is nothing but importation or exportation of goods intentionally or clandestinely without payment of customs duties or taxes payable or to bring into or to take out of Pakistan the goods in breach of any prohibition or restriction imposed by law. The bringing of gold in personal baggage in violation of the import policy was definitely illegal but it being not a banned item was not included in the list of items specified by the Central Board of Revenue, in which the opinion under section 181 of the Customs Act, 1969 could not be given. The import of gold under the Import Policy 1995/96, was restricted to a registered person or Company with the purpose to regulate its import and business in the local market but its import by an unregistered person would neither debar the Customs Authorities from using the discretionary power under section 181 of the Customs Act, 1969 or the Legislature by using the word "may" in this section intended to give unbridled power to the Customs Authorities to act entirely in their own wisdom. The narrow interpretation of special provision in the statute relating to the discretionary jurisdiction may defeat the very purpose of the provision as it is settled law that discretion must not be exercised to curtail the purpose of law and offend the statute rather the discretion must be exercised to advance the cause of justice in just, fair and reasonable manner. The failure to exercise the discretionary power under the statute without any legal justification would amount to refusal to use such power in an arbitrary and capricious manner.
11. In the light of foregoing discussion, we are of the view that it is imperative for the Customs Authorities to consider the provision of section 181 of the Customs Act, 1969 at the time of passing the confiscation order in the cases in which the provision of this section can be invoked and pass an appropriate order for grant or refusal of option for the redemption of goods in lieu of the payment of fine and taxes. These appeals are allowed in the above terms leaving the parties to bear their own costs."
' In similar circumstances, this Court has earlier in Sherzada's case (SAO 2 of 1999) relying upon Abu Bakar Siddique's case supra, held that:- "Thus the adjudication officer at the time of passing the confiscation orders had to exercise the discretion vested in it under Section 181 of Act, by providing the owners of confiscated goods to pay fine in lieu thereof. This failure on the part of the adjudicating officer is, in view of the clear dicta of the Supreme Court, is clearly a blatant illegality which requires judicial redressal."
Accordingly, in view of the above legal discourse, this Court is of the opinion that it was illegal exercise of discretion by the confiscating custom officer to have not provided the owner of the confiscated gold an option to pay penalty in lieu of the confiscation.
10. As far as the contention of Revenue that, the petitioner Aqil Khan was a Carrier and not the owner, it is noted that his reply to the Show Cause Notice served upon him during adjudicating proceedings and even during the proceedings following thereafter, Aqil Khan has never admitted to be the Carrier on behalf of the "True Owner". The Adjudicating Authorities have erroneously relied upon the findings of the Special Judge trying the present petitioner for the penal offences under the Act, which is against the settled principle of law.
11. Accordingly, for the reasons stated hereinabove, this Customs Reference is answered in positive in terms opined above and the impugned decisions are set aside.
' The case is remanded back to the Adjudicating Collector to provide an opportunity to Aqil Khan for proving the ownership of the seized and confiscated gold and if found to be the true owner, provide him an option on payment of penalty in addition to duties and taxes under the law in lieu of the confiscation of the said gold.
' The office is directed to send the copy of this judgment under seal of the Court to the Customs, Federal Excise and Sales Tax Appellate Tribunal, Peshawar.