MUHAMMAD SADIQ, MEMBER (TECHNICAL).---This Judgment disposes of Customs Appeal No.K- 751/2011 filed by the Appellant against the Order-in-Appeal No.5399/2011 dated 01.06.2011 passed by the Collector of Customs (Appeals), Karachi.
2. Brief facts of the case as per prosecution story are that the staff of Directorate of Intelligence and Investigation-FBR raided a private godown situated at Muslim Katchi Khata Jamat Khana, Bhim Purr, Karachi in terms of section 163 of the Customs Act, 1969 (hereinafter called the Act) and recovered 150 bags of Indian/Vietnamese origin Black Tea weighting 10672 kgs. The owner of the godown failed to produce any legal import documents in support of lawful possession of the above mentioned goods. Therefore, the same were seized under the relevant provisions of the Act.
3. The adjudicating officer vide Customs Order-in-Original No.67886 of 2011 dated 20.05.2011, held that the charges levelled against the present the appellant were established. Operative part of the impugned order reads as under:- "I have proceeded with the case and observed that the charges as livable in the Show-Cause Notice No.1395-A/DCI/Seiy2010 dated 26.10.2010 stands established, on the basis of enquiries conducted by the Directorate of Intelligence and Investigation- FBR, Karachi. I, therefore, order outright confiscation of seized 150 bags of black tea Indian / Vitenam origin (Weighing 10672 kgs) for violation of the section 3(1) of the Imports and Exports (Control) Act, 1950 Section 16 (For seizure and confiscation under section (17), (129) of the Customs Act, 1969, punishable under clauses (9)
(64), (89) and (90) subsections (1) and (2) of section 156 of the Customs Act, 1969, read with SRO.499(1)/2009 dated 13.06.2009."
4. The appellant filed an appeal against the above Order-in-Original before the Collector of Customs (Appeals), Karachi, who decided the appeal vide Order-in-Appeal No.5782/2012 dated 06.02.2012. The operative part of the said Order-in-Appeal is reproduced hereunder:- "I have thoroughly examined the entire case record and given very careful consideration to the arguments advanced before me. The appellant had not submitted any evidence whatsoever to prove legal import or lawful possession of 150 bags of black tea of India and Vietnam origins seized in this case. On the other hand, the presence of the marks and numbers "In. Transit to Afghanistan" on the bags containing the black tea clearly established that the goods had been initially imported for consumption in Afghanistan but the same had been smuggled into Pakistan. Therefore, I agree to, and endorse, the adjudicating officer's finding that the seized goods had been unlawfully brought into the country. Moreover, black tea has been notified in terms of Section 2(s) of the Customs Act, 1969 through Notification SRO.566(I)/2005 dated 06.06.2005 and, as such, the same needs to stay confiscated outright as per the provisions of law contained in Notification SRO.499(I)/2009 dated 30.06.2009. For the foregoing reasons, I rule that the arguments advanced by the learned counsel, reproduced at para. 3 above, are after thoughts and untenable as such.
Consequently, I hold that the impugned order is correct in law and on facts and there is no reason to interfere with the same. The appeal, being absolutely without merits, is rejected accordingly."
5. Being aggrieved and dissatisfied with the Order-in-Original, the appellant filed the instant appeal before this Tribunal. The appellant has assailed the impugned order mainly on the following grounds:-
(a) That the show-cause notice was barred by time in terms of section 168(2) of the Act, because the show-cause notice was issued after a lapse of over 04 months;
(b) That no notice under section 171 of the Act was issued to the appellant regarding seizure of goods;
(c) That the onus of proof lies on the respondents;
(d) No penalty was imposed: hence confiscation of the goods was illegally; and
(e) That the goods were locally procured, hence the respondents had no jurisdiction over them and the show-cause notice as well as the impugned order was illegal.
6. The Representative of the department defended the impugned order and' reiterated the line of arguments that the said order was correctly and lawfully passed.
7. We have heard both the parties and gone through the record of the case. The fundamental facets of the controversy are:-
(a) Validity or otherwise of the show-cause notice when it was - issued after two months of the seizure;
(b) Service of notice under section 171 of the Act;
(c) Propriety of imposition of penalty; and
(d) Onus of proof These are discussed as below:-
(a) The learned counsel for the appellant has controverted that the show cause notice was issued after a period of 04 months as the seizure was effected on 16.06.2010 and the Show-Cause Notice was issued on 26.10.2010. The respondents have controverted the contention of the appellant. It is viewed that under subsection (2) of section 168 of the Act, the goods regarding which notification is issued under section 181 of the Act are not covered by limitation of 02 months. For ease of reference, the said provisions are reproduced below:- "168. Seizure of things liable to confiscation.- (1)....
(2) Where any goods are seized under subsection (1) and no show-cause notice in respect thereof is given under section 180 within two months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: Provided that the aforesaid period of two months may, for reasons to be recorded in writing, be extended by the Collector of Customs by a period not exceeding two months: Provided further that the limitation prescribed under subsection (2) shall not apply to goods specified under the first proviso to section 181."
"181. Option to pay fine in lieu of confiscated goods.----Whenever an order for the confiscation of goods is passed under this Act, the officer passing the order may give the owner of the goods an option to pay in lieu of the confiscation of the goods such fine as the officer thinks fit.
Provided that the Board may, by an order, specify the goods or class of goods where such option shall not be given: Provided further that the Board may, by an order, fix the amount of fine which, in lieu of confiscation, shall be imposed on any goods or class of goods imported in violation of the provisions of section 15 or of a notification issued under section 16, or any other law for the time being in force."
Under the aforesaid Section, the Federal Government has notified certain goods in terms of Clause
(a) subsection (2) of the Act under Notification SRO.566(I)/2005 dated 06.06.2005. It is evident that the impugned "Black Tea" appears at serial No.35 of the said SRO. Hence it is evidently clear that the time limitation of 02 months is not attracted in this case, so the show-cause notice was issued within the time stipulated under the aforesaid legal provisions.
(b) Regarding issuance of notice under section 171 of the Act, the same notice was duly served upon the possessor of the goods so there is no substance in the assertion that it was not properly served. Furthermore, when the show-cause notice was issued, the appellant was provided ample opportunity to prove lawful possession of the impugned goods, which he failed to do.
(c) Regarding the onus of proof, it is viewed that the goods in question also bore inscription "Transit to Afghanistan". In view of this position, the onus was squarely upon the appellant in terms of sections 156(2) and 187 of the Act to prove the lawful possession of the impugned goods. The appellant failed to C discharge the burden of proof.
(d) Regarding imposition of penalty, it is viewed that the case quoted by the learned counsel that the appellant has different merits which he could not relate to the instant case having merits of its own. So it ought to be dealt with independently as relevance could not be established by the learned counsel for the appellant.
8. In view of the above, we do not find any infirmity in the impugned order, which is upheld and the appeal in hand stands rejected.