SYED SARDAR HUSSAIN SHAH, MEMBER (JUDICIAL).-- AttiquIlah and another (appellant here-in) has filed this appeal against the Order-in-Appeal No, 36/2012 dated 30.12.2011 passed by the Collector of Customs (Appeals), MCC Peshawar, whereby the appeal of the appellant was dismissed.
2. Facts of the case as per available record are that the Customs Mobile Squad No, 2, Peshawar on 01.01.2011, in pursuance of prior information intercepted a Mazda Truck bearing Registration No, SGJ4751 at Chamkani R.T. Road, Search of the vehicle resulted in recovery of foreign origin 110 bags Black Tea Kenya. On demand, the occupants of the vehicle (1) Ahmed Nawaz son of Sher Baz resident of Sargodha (2) Attiquilah son of Haji Muhammad Umar resident of Jamal Khyber Agency failed to produce any legal documents/lawful possession of the black tea so recovered. Therefore, the Customs staff seized the foreign origin smuggled black tea along with the said vehicle under Section 168 of the Customs Act, 1969 for violation of Sections 2(s), 16 and 157 ibid read with Section 3(1) of the Imports and Exports (Control) Act, 1950 punishable under Section 156(1) (8), (89) of the Customs Act, 1969 read with Section 3(3) of the Imports and Exports (Control) Act, 1950.
3. Subsequently, after completion of the requisite formalities, the matter was placed before the Deputy Collector Anti Smuggling Division, Customs Peshawar, who vide Order-in-Original No,123 of 2011 dated 19.08.2011, confiscated the seized Black Tea and released the vehicle against Bank Guarantee LG No, 20/2011 dated 09.03.2011 of Rs, 130,000/-.
4. Aggrieved of the impugned Order-in-Original No,123 of 2011 dated 19.08.2011, the appellants filed an appeal before the Collector Customs (Appeals), Peshawar, who vide Order-in-Appeal No,36 of 2012 dated 30.12.2011, rejected the appeal. Hence the instant appeal.
5. I have heard arguments of both the parties and gone through the record of the case.
6. In this case, an importer company namely SPATCOs imported 210 bags black tea weighing 13849 kgs. from Kenya vide G.D. No,KAPRFC37897 dated 02.11.2010. After clearing the same, the SPATCO sold out a quantity of 110 bags weighing 7480 kgs to Messrs Khyber Tea and Foods Company, Peshawar. In this respect Sales Invoice No,1079 dated 20.12.2010 was issued by SPATCO wherein the buyer name is Messrs Khyber Tea and Foods Company, Room No,13, Ashraf Road, Kachehri Gate, Peshawar City. Messrs Khyber Tea and Foods Company sold out the purchased quantity of black tea to Muhammad Arif. In this respect Sales Invoice dated 31.12.2010 show the purchaser name as Muhammad Arif Khan, Hashtnagar Street No,2, Afghan Colony, Peshawar City. The same quality and quantity of black tea was further sold by Muhammad Arif Khan to one Hamza Tea, Narankari Bazar, Rawalpindi. The said bility documents dated 31.12.2010 clearly mentioned that the customs papers, photocopies are attached with the receipt. While this consignment was on its way to Rawalpindi in a Mazda Truck No,SGJ-4751 was intercepted by the customs staff on 01.01.2011 at 09:00 hours at Chamkani. The driver of the vehicle introduced himself as Ahmad Nawaz son of Sher Baz, resident of Sargodha and Atiqullah son of Haji Muhammad Umer resident of Jamal Khyber Agency and according to prosecution they have failed to produce any legal import documents for possession of the recovered goods.
7. Perusal of the case record reveals that there is nothing on the file which suggest that the recovered black tea is not that one which was properly imported and sold out through proper documents. The seizure of the customs staff in this case is illegal and without lawful authority.
According to the Constitution of the Islamic Republic of Pakistan, 1973, no one shall be deprived of his property in any unlawful manner. The learned lower fora has unfortunately has not taken into consideration the lawful documents of the appellant and thus erred in law. Furthermore, show- cause notice was issued on 15.12.2011 while Adjudication Officer passed the order on 19.08.2011.
According to subsection (3) of section 179 of the Customs Act, 1969, the case shall be decided within 120 days of the issuance of the show-cause notice or within such period extended by the Collector Customs for which reasons shall be recorded in writing but such extended period shall in no case exceed 160 days. In this case, the matter was decided after 120 days. The mandatory provision of the Act has been violated and there is no explanation for the same delay. The learned lower fora have failed to examine the law on the subject, even no application of mind has been envisaged by the order of Collector of Customs (Appeals). It may be pointed to mention here that as per Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, every person has to be dealt with in accordance with law and it is an inalienable right of every citizen to be so dealt. In this case, I find it conspicuously contrary to Article 4 that the law has not taken into account. The time limit is a stipulation of law which has to be adhered to and complied with letter and spirt.
8. The natural justice is the name given to serve fundamental rights and rules which are to be considered so necessary to the proper exercise of power that they are projected from the judicial to the administration sphere. Natural justice, which essence is only fair play in action in something which is basic of our legal system. In this case, I see no fair play in action of the respondents which based their order unlawful.
9. In view of the above discussion I accept this appeal, set aside the impugned order i,e,, Order- in-Appeal No, 36/2012 dated 30.12.2011 and Order-in-Original No, 123 of 2011 dated 19.08.2011 and allow the release of the black tea unconditionally to the appellant.