ROOH-UL-AMIN KHAN, J.---Haq Dad, the appellant, through the instant Customs Reference has challenged the Order-in-Appeal No, 1360/PB/2001 dated 17.4.2013 passed by Worthy Collector Customs Appeal, Order-in-Original No, 62/2001 dated 11.5.2001 passed by Collector of Customs, Sales Tax and Central Excise (Adjudication) seeking this Court's opinion on the following questions of law:-- '`(a) Whether under the facts and circumstances of the case, the impugned orders and judgments of the lower forums and particularly that of the Tribunal (passed by the member Technical) dated 17.4.2013, are based on correct appreciation, interpretation and application of laws?
(b) Whether under the facts and circumstances of the case, the impugned orders and judgments of the lower forums and particularly that of the Tribunal (passed by the member Technical) dated 17.4.2013, shows a judicious, unbiased and rightful comprehension and appreciation of evidence and material available on file/record?
(c) Whether under the Customs Act, 1969, the FIA (immigration) staff and its officials have been included and notified to be the Authorized and competent officers of the Customs to act and perform the duties in accordance with Customs Act and rules framed thereunder? And if not so, than case their acts and deeds which is the sole right and power of the Customs Notified Officer can be called Legal, valid and correct?
(d) Whether when it has been admitted by the respondents and is a matter of record that the Seizing FIA Official who was not well conversant with the Customs Act, 1969 seized the Gold ornaments and did not provided any opportunity to the Applicant to formally make a declaration in terms of section 139 of the Customs Act, 1969 to the competent Customs Officials had acted in accordance with law and whether the outright seizure is not liable to be declared as void and untenable under the law and superstructure built on this seizure is not liable, to be struck down and fallen on ground?
(e) Whether respondents have strictly adhered to the very definition of smuggling as defined in Section 2(s) of the Customs Act and as is defined by the Superior Courts from time to time?
(f) Whether under the facts and circumstances of the case, the alleged acts of the smuggling have been properly corroborated and proved by the Customs Officials in its legal sense and whether the judgments and Order passed by the respondents on the basis of these deficient evidence can be sustained?
(g) Whether under the facts and circumstances of the case, the respondents have followed the guidelines enshrined by the Superior Courts in dealing with the rights of a passenger who out to be provided with the opportunity of declaration of his baggage at the counter and can the orders of the respondents can be sustained on the touchstone of the judgments reported in 1991 PCr.LJ 644.
(h) Whether despite having been provided with the Order and Judgment dated 15A0.2010 passed by the Honourable High Court in SAO (s) 2, 3 and 19/1999 as well as the order and Judgment dated 16.5.2011 passed in COC No, 165 (which has now further been reconfirmed by the August High Court in COC(s) Nos. 100 and 335 of 2012) regarding the provisions of an option of payment of fine and duties in lieu of confiscated goods by the adjudicating officer to the owner under Section 181 of the Customs Act, 1969, the respondents are not liable to have followed these dictums?
(i) Whether under the facts and circumstances of the case, the rule of law has been acted upon in its true letter and spirit?
(j) Whether under the law, can there be made any
(k) Whether while having no schedule being available wherein the FIA has been empowered to act as an officer of the Customs, the learned Member Technical have rightly mentioned that the Customs Act is included in the schedule of the FIA and they can act as Customs Officers (wherein they did not) and can this observation of the member Technical Applicant?
(l) Whether under the facts and circumstances of the case, the learned Member Technical has acted with required fairness and unprejudiced mind to decide the case judiciously?
(m) Whether by referring to the Order and Judgment of the August High Court in Criminal proceedings against the applicant, the Member Technical was right and acted judicially in punishing the applicant and for making an excuse for confiscation of his gold?
(n) Whether the learned Member Tribunal was justified to hold and keep pending the decision in the appeal for about three and a half months after hearing arguments on 9.1.2013?
(o) Whether the impugned decision of the learned member Technical has covered the grounds raised in appeal and in arguments advanced forthwith?
(p) Other legal questions as comes out on surface during hearing of the case.
2. The matter was argued at some length and it is noted that the judgment of the worthy Appellate Tribunal is based on the determination of facts and findings rendered by the Special Judge Customs in its judgment dated 17.1.2014, which were upheld by this Court in appeal. It is settled principle of law that adjudication proceedings are distinct and separate from the prosecution proceedings provided separately under the Customs Act, 1969 and both the proceedings are to proceed independently without being reliant upon each other. In the present case the worthy Tribunal has relied upon the determination relating to crucial factual disputes passed by the forums provided for prosecution under the enabling provisions of the Act. No doubt, the reference has been made to the decision passed by the initial forum of the hierarchy provided for adjudication under the Customs Act, 1969, however the contention of the present petitioner having not been considered has surely prejudiced his case.
3. By now, it is a settled principle of law that the worthy Tribunal is the last forum, provided under the law, to determine the factual disputes and thus it would be appropriate that the cause of the petitioner be re-considered by the worthy Tribunal and thereafter independent opinion be rendered regarding the factual issues involved in the represent reference.
4. Keeping in view the factual position highlighted hereinabove, the order of Tribunal is set aside and the matter is remanded back to the worthy Tribunal to pass appropriate orders. Being an old matter, the worthy Tribunal will surely dispose of the same expeditiously.
' Office is directed to send a copy of this judgment under seal of the Court to the worthy Appellate Tribunal, Inland Revenue, Peshawar.