1. ' MUHAMMAD YOUNIS THAHEEM, J.---Khan Wali, the petitioner, has filed the present Customs Reference under section 196 of the Customs Act, 1969, seeking opinion of this Court on the following questions of law:- A. Whether the impugned judgment/order is not against law on the subject?
2. B. Whether it is not mandatory under section 180 of the Customs Act, 1969 the show cause notice is completely silent for the said offence?
3. C. Whether it is not violation of under section 180 of the Customs Act that show cause notice must be served to the petitioner?.
4. D. Whether under section 157(2) of the Customs Act is mandatory to confiscate the vehicle?
5. E. Whether it is not the violation of Article 25 of the Constitution of Pakistan?
6. F. Whether the goods falls in the ambit of section 2(s)(iii) or otherwise?
7. G. Any other law point can be allowed at the time of arguments.
2. The important facts leading to the present petition and necessary for this Court to render its opinion on the above question of law raised, are in the following chronological order: 19.12.2014.
8. ' It was reported by the Deputy Superintendent, Drugs Enforcement Cell, Model Customs Collectorate (hereinafter called as MCC) Peshawar, that on 19.12.2014 at 1600 hours, the staff/personnel of P.S. Gulbahar, Peshawar intercepted Eight Ford Wagons bearing registration No, C-9912, C-8382, RIR-2174, RIR 1114, AJK-C 6414, RIR 5409 and C-4641 loaded with foreign origin cloth and handed over to Customs staff at P.S. Gulbahar for further legal action. The customs staff examined the above said vehicles and prepared recovery memo No,174/2014 dated 19.12.2014 about recovered foreign origin cloth. On demand the owners including appellant failed to provide any legal import documents or lawful justification for possession of the above said goods. Upon this the Customs staff seized the foreign origin (cloth) smuggled goods under the provision of section 168 of the Customs Act for violation of section 2(s)(iii) and section 16 of ibid Act read with section 3(1) of Import and Export (Control) Act 1950. The vehicles bearing registration numbers referred above were also seized under section 168 of the Customs Act 1969.
9. 22.01.2015.
10. ' The case was submitted for adjudication before the Collector Peshawar. Accordingly show cause notices were issued on 22.1.2015. Present petitioner and other accused persons submitted an application wherein he requested for order of release of the seized goods on 23.1.2015 on payment of duty/taxes and vehicles on normal fine.
11. 29.1.2015.
12. ' The learned Adjudication Officer Additional Collector after hearing the parties, passed an Order- in-Original No,99/2015 by holding that as respondents including present petitioner had submitted application for release of seized goods on payment of duty/taxes which amounts admission to the fact that goods were smuggled into Pakistan as no documentary evidence with respect to legal import of the seized goods has been produced. Moreover, the respondents submitted that they do not want to contest the charges levelled against them in the show cause notice. Therefore, the charges levelled in the show cause notice were held established and seized goods in terms of sections 156(1)(8) and 89 of ibid Act read with section 3(3) of Import and Export (Control) Act 1950, were confiscated and vehicle registration Nos.C-9212, IDA-3921, RIR-1114, RIR 5409 and C-4641 used in transportation of aforementioned smuggled goods were held confiscated under section 157 of the Customs Act. It was further adjudged that in view of provisions of SRO No,499(I)/2009 dated 13.6.2009, read with section 181 of the Customs Act, 1969 the rightful owners were given option to redeem the vehicle on payment of fine at the rate of 20% of the Custom value of each vehicle. This option was accorded with warning that if the vehicle had been intercepted for the second time for the offence of smuggling the same will be liable to outright confiscation. However, on perusal of record, it was found that the vehicles Nos. R1R-2174 and AJKC-6414 were intercepted and used for the second time having smuggled goods as same were intercepted in Seizure Case No,137/2013 dated 22.9.2013 and Seizure Case No,274/2012 dated 24.9.2012 and were released on redemption fine 20%, therefore, the vehicle was ordered to be confiscated to the State.
13. 4.5.2015.
14. ' The Appeal No,108/PB/2015 filed by the petitioner was disposed of by the learned Customs Appellate Tribunal, by modifying the Order-In-Original No,99/2015 dated 29.1.2015, to the extent of release of Goods on payment of duty and taxes plus redemption fine @ 30% of the value of goods whereas regarding confiscation of vehicles the order of lower Court was maintained.
15. 01.06.2015.
16. ' The instant Reference No,32-P/2015 was filed clearly enumerating the questions of law sought to be opined by this Court in the instant Reference.
3. Admittedly the vehicle of petitioner bearing No,RIR-2174 along with other vehicles were seized by the local police of P.S. Gulbahar, which were later on handed over to Customs authorities wherein foreign origin cloth were being smuggled. The said vehicle was also seized previously in Seizure cases No,137/2013 dated 22.9.2013, Seizure Case No,2174/2012 dated 24.9.2012, by Customs authorities which were released on redemption fine @ 20 of the customs value of the vehicle with a warning that "if the vehicle is intercepted for the 2nd time for offence of smuggling the same will be liable to confiscation" vide Orderin-Original No,308/2013 dated 26.9.2013 and Order-in-Original No,440/2012 dated 12.10.2012, passed by Adjudicating Officer Additional Collector, which means that the vehicle in question is repeatedly beiny: used for the purpose of smuggling goods and despite issuance of warning, the instant vehicle was again used for smuggling goods and in the light of SRO No,499(I)/2009, no option shall be given to pay fine in lieu of confiscation of such vehicle seized for second time in the act of smuggling. The said SRO is reproduced for ready reference as follows:-
(V) S.R.0.499(1)/2009 DATED 13-06-2009.- 'In exercise of the powers conferred by section 181 of the Customs Act, 1969 (IV of 1969), and in supersession of its Notification No,S.R.O. 487(1)/2007 dated 9th June, 2007, the Federal Board of Revenue is pleased to direct that no option shall be given to pay fine in lieu of confiscation in respect of the following goods or classes of goods, namely:- ' smuggled goods falling under clause(s) of section 2 of the Customs Act, 1969 (IV of 1969); ' lawfully registered conveyance including packages and containers found carrying smuggled goods in false cavities or being used exclusively or wholly for transportation of offending goods under clause(s) of section 2 of the Customs Act, 1969 (IV of 1969); or ' Provided that in respect of the following goods or classes of goods where an option is given to pay fine in lieu of confiscation, the quantum of fine in lieu of confiscation in respect of offences specified in column (2) of the Table below shall be at a rate specified in column (3) of that Table and shall be over and above the customs-duties and other taxes and penalties imposed under the relevant law, namely:--
2. Other offences related to.- (a)...............
17. (b)..........
18. (c)..........
19. (d)..........
20. (e)
(r) lawfully registered conveyance including packages and containers, not covered under clause
(b) of the preamble of this notification, found carrying offending goods under section 2(s) of the Customs Act, 1969 (IV of 1969).
21. (emphasis provided)
4. The vehicle along with foreign origin cloth was seized on 19-12-2014, when provision of SRO 499(1)/2009 were in the field. Reviewing the said SRO, it is noted that the 'smuggled goods' or even the vehicle exclusively conveying the 'smuggled goods', would come within the mischief of this rule and would not be permissible to be released on payment of redemption fine in lieu of its confiscation.
5. In view of above discussion, this Court opines that: OPINION: The vehicle in question was twice intercepted by the Customs Authorities for carrying smuggled goods/foreign cloth, for which the petitioner failed to furnish any plausible explanation that the goods recovered from the vehicle were not prohibited under section 181 of the Customs Act, 1969 and despite issuance of warning by the Adjudicating Collector in previous cases for not using the vehicle in such like activities, he was again found while carrying smuggled goods in the vehicle. So the learned Adjudication Officer has rightly ordered confiscation of vehicle by following the S.R.0 No,499(I)/2009 dated 13.6.2009, duly maintained by the learned Customs Appellate Tribunal, to the extent of confiscation of vehicle, which needs no interference by this Court. Thus, the decision of the Tribunal is maintained and the Custom Reference is answered in negative.
22. ' 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.