' Following questions of law has been proposed for our opinion:--- "Whether in view of the operative part of the judgment (Paragraph No, 12) the appeal No, 221/LB/2014 wherein the herein petitioner being a co-appellant stood accepted as a whole as no adverse finding with regard to confiscation of the Truck No, TKE 781-Quetta has been given in the judgment? "
2. The question is asserted to have arisen out of order dated 10.02.2015 passed by the Customs Appellate Tribunal.
3. Brief facts for decision of this reference are that applicant is engaged in the business of goods transport and owns Hino make truck bearing registration No, TKE 781-Quetta. The said truck, while driven by the applicant himself from Quetta to Lahore, on 04.05.2014, at about 04:00 p.m., was intercepted by the respondent No, 3 near Chenab Tool Plaza, Multan. The truck was loaded with different merchandize including steel scrap, old and used rims of LTV, used old and new ball bearings, against valid bills of lading (Builties). Subsequently, applicant was served with show- cause notice dated 02.07.2014 alleging therein that the goods and truck were liable to be confiscated in terms of Section 157 of the Customs Act, 1969. Respondent No, 2, after hearing all the concerned, proceeded to pass Customs Order-in-Original No, 278/2014, dated 05.09.2014, whereby all the seized goods and vehicle were ordered to be confiscated on the charge that the vehicle was "found involved exclusively in transportation of smuggle goods". Aggrieved of the aforesaid order, applicant filed appeal u/s. 194-A of the Customs Act, 1969 before respondent No, 1, who vide consolidated judgment dated 10.02.2015, passed in appeals No, 221 of 2014 and 224 of 2014, accepted the appeal No, 221/14 and ordered the release of the major item viz, the iron scrap, while keeping silence over the matter with regard to truck in question owned by the applicant and dismissed the other appeal No, 224/14. The relevant portion of the judgment reads as under:--- "12. In view of the above situation this Tribunal reached to the conclusion that since scrap has not been mentioned as notified item under Section 2(s) of the Customs Act, 1969, therefore, appeal No, 221/2014 filed by Lal Gul is accepted; and the respondents are directed to release the Scrap to its lawful owner while the appeal No, 224/2014 filed by Abad Khan is dismissed. The impugned order to the extent of appellant Abad Khan who is claimant of new and old ball earring and 317 Rims of vehicle shall remain intact. "
4. Learned counsel for the applicant submits that applicant was co-appellant with Lal Gul in appeal No, 221/14 before respondent No, 1 and as per operative part of judgment (Para No, 12) supra, the appeal stood accepted as a whole inasmuch as no adverse finding with regard to confiscation of the truck in question has been given in the judgment, therefore, vehicle should have been released, however, respondent No, 3 refused to release the vehicle as the judgment of the learned Appellate Tribunal was silent with regard to the vehicle under reference. Further submits that the impugned order, on this very ground, is not sustainable in the eye of law. In support of his contentions, learned counsel relied upon following case-law:---
(i) "Haji Abdul Razzak v. Pakistan through Secretary, Ministry of Finance, Islamabad and another"
(ii) "Collector of Customs v. Rehmat Afridi and 5 others" (2010 PTD 2015)
5. Reply has been filed on behalf of respondent No, 3, wherein the main contention is that the applicant failed to prove that the seized goods had been legally imported into Pakistan upon payment of duty/taxes leviable and further that the subject vehicle being exclusively used for transportation of smuggled goods and thus was rightly confiscated under Section 157(2) of the Customs Act, 1969, read with SRO 499(1)/2009, dated 13.06.2009 vide Order-in-Original No, 278/2014 dated 21.07.2014 and the said order has been maintained by the learned Appellate Tribunal to the extent of present applicant. However, none is present on behalf of respondent No, 3, therefore, proceeded against ex parte.
6. Heard. Record perused.
7. Mere perusal of the impugned order of learned Customs Appellate Tribunal shows that the applicant was co-appellant with Lal Gul in appeal No, 221/LB/2014, but in the operative part of the judgment (Para No, 12) supra, it has been mentioned that the appeal of co-appellant Lal Gul was accepted, but the order is silent with regard to release of confiscated truck.
8. It is also evident from the record that confiscated truck is not involved in any other case of transportation of alleged smuggled goods.
9. We have noticed that in Para (h) of the reply, respondent No, 3 has admitted that:- "the subject vehicle has not been found to be involved earlier in smuggling as per available record".
' The same has also been admitted in Para No, 1 of the reply and is reproduced hereunder:- "Admitted to the extent that the Petitioner deals in the business of goods transportation and is owner of vehicle bearing registration No, TKE-781."
' Similar admission is available in Para (d) of the reply which reads as follows:--- "(d) Admitted to the extent that previous record of the vehicle is silent
10. Since the vehicle in question was not being used exclusively for transportation of smuggled goods, within the contemplation of clause (s) of Section 2 of the Customs Act, 1969, read with SRO 499(1)/2009, dated 13.06.2009, therefore, the same was not liable to be confiscated. The relevant para of the said S.R.O. Reads as under:- "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 following goods or classes of goods, namely:---
(b) lawfully registered conveyance including packages and containers found carrying smuggled goods in false cavities or being used exclusively for transportation of offending goods under clause
(s) of Section 2 of the Customs Act, 1969 (IV of 1969); or" [emphasis supplied]
11. In case of Rehmat Afridi and 5 others supra, the Division Bench of this Court observed as under:-- "7. The record reveals that the Custom Authorities have failed to establish that the truck in question had remained involved in smuggling previously nor they could provide the detail of other cases in which the above-said truck was involved. Admittedly, it was a public transport which was hired and the tyres were transported from one place to another. Learned counsel for the petitioner has argued that the tyres were being smu ggled in cavity of the truck, so it shall be confiscated under clause (b) of S.R.O. No, 499(1)/2009."
12. The words "liable to confiscation" as used in Section 157 of the Customs Act, 1969 are not synonymous to "shall be confiscated", therefore, do not mean automatic confiscation. In the circumstances, it was not justified to deprive the applicant from his vehicle. He should have been given opportunity to produce evidence and his point of view should have been given due consideration, which is lacking in the instant case.
13. In case of Haji Abdul Razzak supra, the Hon'ble apex Court of the country held as under:--- "It appears to us that there is a great deal of force in the reasoning of the learned Judge in this case.
' If the words "liable to confiscation" give a. Discretion to the confiscating authority to deprive a person of his property, then it follows that this discretion must be exercised upon the principles of natural justice; that is to say, the persons sought to be deprived of the property must be given notice to Show-Cause, they must be furnished with adequate opportunity of putting forward their point of view and the same must receive due consideration. Further-more, according to one of the principles now well accepted, no person should be deprived of his property by way of penalty unless it is clear that he is in some measure responsible for assisting or furthering the commission of the offence committed.
' No innocent person should be unjustly punished or deprived of his property. This was the cardinal principle which was followed by the learned Judge of the Calcutta High Court in the last mentioned case. We too think that this was the correct principle upon which the authorities should proceed."
14. Since respondent No, 3 has also admitted in its reply, reproduced supra, that applicant's vehicle had no previous record of being involved in smuggling, therefore, it cannot be said to be used exclusively for transportation of offended goods. Under the circumstances, our answer to the proposed question is in affirmative, in favour of applicant and against the respondent department.
15. Office shall send a copy of this order under seal of the Court to the Customs Appellate Tribunal, as per Section 196 (5) of the Customs Act, 1969.