MUHAMMAD SAJID MEHMOOD SETH I, J. Through this Customs Reference filed under Section 196 of the Customs Act, 1969, ("Act"), the applicant has called in question judgment/order dated 22.02.2016 passed by the Customs Appellate Tribunal Bench-I, Lahore ("Appellate Tribunal") whereby the appeal filed by the respondent was allowed.
2. The brief facts of the case are that on receipt of secret information, staff of the Directorate of Intelligence, FBR, Lahore intercepted bus bearing registration No. LES-078538 at Babu Sabu Interch ange, Lahore which was coming from Peshawar . On cursory inspection, huge quantity of foreign goods were found available in rear portion of the bus and its Dikkies. The vehicle was carrying at least 20 passengers who were allowed to leave as they did not show any concern with the afore-referred goods. On examination conducted in the presence of Altaf Hussain Driver and Ali Muhammad Cleaner who both are residents of Peshawar the afore-referred foreign origin goods were recovered without any document of legal import or lawful possession. Conse quently , treating the same as smuggled goods the same are seized under Section 168(1) of the Act for contrav ention of provisions of Sections 2(s) and 16 of the Act read with Sections 3(1), 7(3) of the Imports and Exports (Control) Act, 1950 punishable under Clause 89 of Section 156(1) read with Section 178 of the Act further read with SRO 499(I)/2009, dated 13.06.2009.
The passenger bus was also seized for confiscation under Section 157 treating the same as exclusively and wholly used for transportation of smuggled good s and show-cause notice dated 07.04.201 5 was issued to the respondent for proceeding against him. The adjudicating authority vide order-in-original No. 21 of 2015, dated 01.05.2015 decided the case against the responden t which was challenged by him by filing an appeal before the Appellate Tribunal which was allowed and the confiscated vehicle was ordered to be released subject to payment of Rs.
50,000/- as penalty . The afore-referred order has been challenged before us on the ground that as the vehicle had been exclusively used for the purpose of smuggling, therefore, was liable to be out rightly confiscated.
3. On the other hand, learned counsel for the respondent has defended the afore-referred order .
4. Heard. Record perused.
5. The following question of law has been raised:- Whether the learned Appellate Tribunal had erred in law by allowing release of the confiscated bus carrying smuggled goods against penalty of Rs. 50,000/- by violating clause (b) of the preamble of SRO 499(1)/2009, dated 13.06.2009 and, clause 2(f) of the table in the said SRO?
6. We have gone through the impugned judgment/order passed by the Appellate Tribunal, the operative part of which is reproduced below:- "We have perused the record and have heard the arguments of both the parties. We are convinced that clause (b) of SRO 499(1)/2009, dated 13.06.2009 cannot be applied in strict and absolute terms as a necessary consequence of smuggled goods. The owner of the vehicle cannot be deprived of his lawfully registered vehicle unless adequate proof of involvement of owner of vehicle is proved It is evident from record that no prima facie' direct/adequate evidence is available to prove that the owner of vehicle was directly involved in smuggling in the instant case. In the case Haji Abdul Razzaq v. Pakistan (PLD 1974 SC 5), it has been held that without adequate proof of involvement, the owner of transport vehicle cannot be held guilty of being a party to the act of smuggling.
The upshot of the above is that the vehicle confiscated vide the impugned order shall be released subject to the payment of penalty of Rs. 50,000/- and handed over to its lawful owner . Only to the above extent the impugned order is modified"
7. Perusal of the afore-referred impugned order shows that the Appellate Tribunal, while allowing the respondent's appeal against order of confiscation of vehicle, has observed that it is evident from the record that no prima facie direct/adequate evidence is available to prove that owner of vehicle was directly involved in smuggling in the instant case. Besides a vehicle could only be confiscated. if it was involved in wholly and exclusive manner for transportation of smuggled goods whereas from the facts narrated in the case it is shown that vehicle was carrying about 20 passengers who were available in the bus and were allowed to leave when the goods and the vehicle were seized. The finding of the Appellate Tribunal that no prima facie direct/adequate evidence is available to prove that owner of vehicle was directly involved in smuggling of goods is a finding of fact and this Court has got no jurisdiction to decide and set-aside findin gs of fact in reference proceedings and only deals with questions of law, none of which has arisen out of the order of the Appellate Tribunal, therefore, we decline to exercise advisory jurisdiction.
8. This Reference Application is decided against applicant/department.
9. Office shall send a copy of this order under seal of the Court to learned Appellate Tribunal as per Section 196(5) of the Act.