' The present appeal was fixed before the Division Bench of this Tribunal for disposal according to law but the perusal of record shows that the subject appeal was the jurisdiction of Single Bench therefore, the same was referred to the Hon'ble Chairman for assignment to any Member of this Bench. On 13.06.2013 this appeal was entrusted to the undersigned for disposal. Arguments on the appeal have been heard and the same was reserved for orders.
2. This judgment will dispose of Custom Appeal No. 192/LB/201 filed by the appellant against order- in-Appeal No. 80/2013 dated 2.4.2013 passed by the learned Collector of Customs, (Appeals), Lahore.
3. Brief facts of the case, as reported in the order-in-appeal are that the Police authorities intercepted the bus displaying Registration No. 066 on 30.06.2012. During checking the foreign origin cloth (i.e. 03 boras) was found loaded from the roof of the bus. The same was unloaded by the Police Staff. A person namely Maqsood Ahmad S/o Sufi Faqeer Ali, R/o Goth Raza stepped forward and claimed the ownership of the unloaded cloth. The police authorities served the notice under Section 171 of the Customs Act, 1969 to the said claimant and the boras were sealed without making any detailed inventory/recovery memo. This proceeding of the interception and recovery of the said boars of cloth was covered by the police officials.
4. On 02.07.2012 Mr. Umar Mahmood, ASI, P.S Saddar, Rahim Yar khan approached the office of Anti Smuggling Organization, Multan and submitted and application to the Incharge ASO, Customs House, Multan alongwith road Certificate/Rapat No 27/2012 dated 30.06.2012 stating therein that they have recovered the aforesaid foreign origin smuggled cloth, in the application, the said police official requested for the deposit of the said recovered cloth for further proceedings under Customs Act, 1969. Since there was no proper inventory of the recovered cloth, the same sealed boras were opened by the police officials before customs stall which yielded into recovery of 150 roll of grip shafoon of printed, plain and assorted colours in roll shape measuring 3750 yards (each roll having measurement of 25 yards and having width of 1.75 yards) and a separate inventory memo. Was prepared by the Customs ASO and SWH staff after getting it signed by the police officials. The brief detail and description of all the recovered/seized cloth is as under:-- ' Grip/Shaffon= 150 Rolls (3750 yards) (Printed/plain in assorted colours all in Roll Shapes)
Brand:Y.S.N Textile as per sticker/width of each roll in 1.75 yards
5. On 27.07.2012, a person namely Muhammad Akram S/o Fakhar-ur-Din R/o Sadiqabad submitted an affidavit/application addressed to the Deputy Collector, ASO, Customs House, Multan stating therein that he is the bonafide owner of the cloth that has been recovered and off loaded by the police authorities through Rapat No. 27 dated 30.06.2012. In support of his claim of ownership, he stated that the said cloth is part and parcel of the cloth released by the Directorate General of Intelligence, Rang Office, Sukkur on payment of duty/taxes and redemption fine. He also annexed photo-copies of detention memo. & seizure Report No. 08/2012 of Directorate General of Intelligence & Investigation-FBR, Range Office, Sukkur regarding the seizure of 23880 yards cloth, a copy of the order in Original No. 26/2012 dated 03.05.2012 passed by the Deputy Collector, Customs Sukkar (wherein the seized cloth was released on payment of duty and taxes and redemption fine @ 20% of Customs value), Tax payment receipt (paid in National Bank of Pakistan, Sukkar) and release order (issued by Directorate General of Intelligence & Investigation-FBR, Rang Office, Sukkar) and photocopies of the affidavits given in his favour by Masood Ahmad S/o Faqir Ali R/o Goth Raza Tranda Sawain Khan (the earlier claimant of recovered cloth) that Muhammad Akram S/o Fakhar-ur-Din R/o Mohallah Noori, Sadiqabad is the actual owner of the cloth recovered by police through the aforesaid rapat.
6. All the aforementioned documents submitted by The claimant were thoroughly perused/scrutinized by the ASO staff, Model Customs Collectorate, Multan which transpired that the present claimant could not produce any such document showing that he purchased the recovered cloth from all these claimants as mentioned in the order in Original No. 26/2012 dated 30.05.2012 passed by the Deputy Collector, Customs, Sukkar. Further it is difficult to substantiate that the recovered cloth by the police is the same that has been released by the Customs Authorities, Sukkur on the ground that no cogent evidence has been produced by the claimant to match the origin, quality and description (colour, brand, import origin etc). Moreover, no documents have been given showing that how much quantity of the released cloth has been sold and to whom. Further, the destination of the released cloth after its release from Sukkar to storage place was also unknown. All these facts clearly reflect that the claimant has made an afterthought attempt just to give legal cover to the smuggled cloth. Thus he has totally failed to discharge his liability under Section 156(2) and 187 of the Customs Act, 1969. In the light of above mentioned facts, the recovered cloth i.e. (foreign origin smuggled art silk cloth, of different colours, total measuring =3750 yards/15rolls having width 1.75 yards) was smuggled one as defined under Section 2(s) and 16 of the Customs Act, 1969. Therefore, all the recovered cloth was seized under Section 168 of the Customs Act, 1969 adopting all legal formalities for violation of Section 16 & 178 of the said Act read with Section 3(1 )(3) of the Imports & Exports (Control) Act, 1950. The seized clot's is liable to confiscation under 89 of Section 156(1) of the Customs Act, 1969 read with Section 3(1)(3) of the Imports & Exports (Control) Act, 1950 and SRO 499(1)/2009 dated 13.06.2009.
7. Based on what has been stated above, it is established ) beyond shadow of doubt that the seized cloth is indeed smuggled as defined 1 under Section 2(s) of the Customs Act, 1969 which had been brought into country in a clandestine manner through an unauthorized route without payment of duty and taxes. Thus, the charges as levelled in the show cause notice are correct and stand established. Accordingly, the seized Art Silk Cloth (150Rolls=3750 yards) ordered to be confiscated under clause 89 of Section 156(1) of the Customs Act, 1969 read with clause (a) of SRO 499(1)/2009 dated 13.6.2009. As consequence of adjudication, the adjudicating authority passed the impugned order which was assailed by the appellant before the learned Collector (Appeals), Lahore, who after hearing the parties rejected the appeal. Being aggrieved by the said order, the appellant challenged the same through an appeal before thus Tribunal.
8. It is contended by Mr. Muhammad Akram Nizami, Advocate for the appellant that the order in appeal has been passed in a mechanical fashion and without proper appreciation of law points involves in the case and as such, the same is liable to be set-aside on this score alone. It is further contended that the allegations against the appellant are not based on any evidence and reasoning. It is argued that the confiscation of the goods in question is illegal because the goods were seized by the police authorities from the bus near Sadiqabad while the sam3 was plying for Faisalabad. At the time of interception the appellant categorically stated before the police authorities that the luggage found loaded on roof of the bus has lawfully been retained in Pakistan and there is nothing wrong with the legal status of the same, unfortunately, the police authorities with an adamant behavior and without any lawful jurisdiction seized the goods The appellant agitated against this illegal act on the part of the police authorities and requested to release the goods. However, the request was not accepted to and the police authorities seized the goods under the provisions of the Customs Act, 1969. It is further argued that the monitory value of the cloth in question is less than Rs. 150,000!-, thus, the provisions of Section 2(s) of the Customs Act, 1969 cannot be attracted. As such, the order in original is liable to be set aside. It is added that the impugned seizure was affected by the police authorities and the seized good were deposited in the custom state warehouse for safe custody only. The seizure memo. Was already prepared by the said police authorities therefore there was no justification and legal rational to make another seizure memo, which has been made basis for the illegal issuance of show cause notice, which culminated the impugned order in original and order in appeal. It is worth mentioning that the total loaded consignment was containing 12 bags of cloth, whereas, the seizure memo. Was prepared for 3 bags only, which clearly suggests that 9 bags of cloth were misappropriated, which indeed needs an independent enquiry. It is asserted that the provisions of the Customs Act, 1969 are not applicable to the seized quantity of cloth since the same is an indigenous product.
9. On the other side Mr. Muhammad Sarfraz, Inspector for the respondents rebutted the contentions raised by the appellant's side and defended the impugned order. It is contended that perusal of seizure report, show cause notice, order in original and subsequently order in appeal clearly transpire that the allegations were raised against the impugned goods on the basis of proper and sufficient reasons rather than on the basis of presumption etc as alleged by the appellant. Hence this aspect of appeal is also vehemently denied. It is further contended that the police authorities only intercepted/detained the impugned cloth and the rest of legal proceedings as per provisions of Customs Act, 1969 was accordingly served. It is stated by the ,Departmental Representative that CIF value of the impugned goods is approximately RS. 300,000/- rather than Rs. 150,000/- as alleged by the appellant. However, exact CIF value is to be ascertained by the authorities at Customs Dry port, Multan. In this way, the impugned goods duly attract the provisions of Section 2(s) of the Customs Act, 1969 and the order-in-original as well as order-in-appeal has been passed duly in accordance with law and need to be remained intact. It is further stated the impugned goods were only detained by the police authorities whereas the rest of proceedings as per relevant provisions of Customs Act, 1969, were initiated by the customs authorities. As alleged by the appellant, the impugned goods were not seized twice at all. Hence, the show cause notice as well as the order in original and the order in appeal has been passed lawfully. It is further stated that the competent authorities as well as the appellate authority have passed the order in original and appeal strictly adhering to the provisions of Customs Act, 1969 in true perspective, therefore, both the afore-discussed orders having been passed quite in accordance with law, need to be maintained.
10. I have heard the arguments of Mr. Muhammad Akram Nizami, Advocate learned counsel for the appellant and Mr. Muhammad Sarfraz, Inspector for respondent and with their able assistance perused the record carefully. From the perusal of the record, it transpired that the seizure was affected by the Local Police and the seized goods were deposited in the Customs State Warehouse for safe custody and the seizure memo. Was already prepared by the Police Authorities. Perusal of the rupat roznamcha prepared by the Local Police is available on the paper book at page 25 reveals that notice under Section 171 of the Customs Act, 1969 was even according to roznamcha was issued to the appellant by the Local Police. In my opinion, the Police made the seizure of the impugned goods issued show cause notice under Section 171 of the Customs Act, 1969 but thereafter the Customs Authorities made another seizure which has made the basis for the issuance of 2nd show cause notice is not legal. Under the law the Police has no authority to act regarding the seizure of the impugned goods or even interception, invoking the provisions of the Customs Act, 1969 and in this way the Police authorities have exercised their powers beyond jurisdiction/In this regard the learned counsel for the appellant has relied upon a judgment reported as "2013 PTD (Trib) 327 in the case of M/s Khyber Tea and Food Company, Peshawar and others Vs. Collector of Customs (Appeals) Peshawar and six others" wherein it is mentioned that "In the year 2005 by a Customs Notification SRO 913(1)/2005 dated 30.07.2005, the Federal Government has withdrawn the powers of Customs officers to Police entrusted under Section 6 of Customs Act, 1969. In the light of said SRO the Police have no power to detain or seize the goods having the documents of lawful possession and legal import. The officers notified under Section 6 of the Customs Act, 1969 can only seize the goods and give it in the custody and care of the Customs authorities whereas, the Police officers neither notified nor authorized officers of customs within the meaning of Sections 2(b), 3, 4 and 6 of the Customs Act, 1969 to detect or detain the goods and handover the same to the customs authorities and any such action taken by them within the provisions of the Customs Act, 1969 is illegal. The detention/seizure of goods by un- notified and unauthorized officers has been termed as an illegal detention/seizure. In case of an illegal seizure, goods are to be restored to the person from whose possession they were seized.
Reliance in this regard is placed on PLD 1968 Kar. 599, PLD 1969 SC 53, PLD 1977 Lah.1318, PLD 1975 Kar.482."
11. In the light of what has been stated above, the appeal is accepted and the impugned orders are set aside.