SYED TANVIR AHMED, MEMBER TECHNICAL-III.---- This Judgement disposes of Customs Appeal No.H-17/2018 filed by the Appellant against Order-in-Appeal No.769/2017 dated 27.11.2017 pass ed by the Collector of Customs (Appeals), Karachi.
2. Whereas it was reported to the undersigned by the Senior Intelligence Officer, Directorate General of Intelligence and Investigation-FBR, FIU, Hyderabad that "A credible information was received through Deputy Director Intelligence and Investigation -FBR, FIU, Regional Office Karachi that non duty paid Foreign Origin Black Peeper , non duty paid, would be attempted to transport from Peshawar to down Country . The Senior Intelligence Officer further reported that "accordingly a team was instituied to foil such attempt which laid near Hala Naka, Hyderabad, on 03.12.2016 at about 1:00 AM a Trawle r bearing Registration No. TLV-722 was stopped coming from up country towards Hyderabad. On cursory checking the smuggled goods of foreign origin 50 Bora of black pepper as per Bilty No. 1795/50 dated 29.11.2016 was found. The driver namely , Syed Arab Shah son of Haji Adal Jan, CNIC No. 21203-1914837-5, produced copy of import document i.e. GD No. KAPW -HC-82374 dated: 28.10.2015 along with Bilty No. 1795/50, issued by Pindi Mushtarka Mohmand Goods Transport Company , Peshawar . The scrutiny of produced GD revealed that it did not tallied with aforesaid Black Pepper .
3. The Senior Intelligence Officer further reported that "in the light of above there are reasons to believe that the intercepted goods were non duty paid and the owner of said Black Pepper tried to transport in garb of paid documents. Therefore the smuggled goods were seized Under Section 168 of the Custom Act, 1969 for violation of 16 and 178 of the Customs Act, 1969, for punishable under clause (89) of subsecti ons (1) and (2) of Section 156 of the Customs Act, 1969. Notice under section 171 Customs Act, 1969 was served upon Syed Arab Shah son of Haji Adal Jan, CNIC No. 21203-1914837-5, (Driver of Trawler No.TL V-722) and copy of said notice issued to Umar Haroon Traders and Arif Traders (Consig ner/Consignee) as per produced Bilty No. B-1795/50 Dated. 29.11.2016 issued by Messrs The New Pindi Mushtarka Mohmand Goods Company , Peshawar . A copy of the said notice was also pasted on the Notice Board of the of fice MU, I&I-FBR, situated at MCC, Customs House Hyderabad.
4. The adjudicating officer vide Order-in-Original No.120/2017 dated 06.03.2017, held that the charges against the Appellants are established. The operative part of the impugned order reads as under:- "I have examined the case record, considered the verbal as well as written arguments of both the parties.
Consequently I do conclude as under: "In view of the above verification report submitted by the seizing agency vide C. No. Nil dated 24.02.2017 (reproduced at Para-20 of this order), it is established that the seized goods were brought into the country through an authorized route with payment of duties and taxes. Therefore, In view of above, I do not find any reason to disagree with the contention of the Seizing Agency that the seized goods were brought into the country through an unauthorized route without payment of duties and taxes. I do order outright confiscation of the seized goods in terms of clause (89) of subsections (1) and (2) of section 156 of the Customs Act, 1969 for violation of Sections 16 and 178 of the Customs Act, 1969".
5. On appeal filed by the Appellant against the above Order , the Collector of Customs (Appeals), Karachi vide Orders-in-Appeal No.769/2017 dated 27.1 1.2017 and upheld the order of adjudicating authority .
5. Feeling aggrieved and dissatisfied with the above Order-in-Appeal, the Appellant filed an appeal before this Tribunal on the grounds that the appeal before Respondent No. 3 was filed on 23.03.2017, in terms of subsection
(3) of Section 193A of the Customs Act, 1969, Order has to be passed within 120 days or within further extended period of 60 days in terms of its proviso by the Respondent No 3, himself, upon availability of exceptional circumstances and recording of those after issuance of notice to the tax payer as held by Hon'ble Supreme Court of Pakistan in reported judgment 2009 SCMR 1881, Khalid Mahmood v. Collector of Customs . In the instant case of the appellant, the appeal was filed on 23.03.2017 and the Order should have been passed on or before 21.07.2017 which he failed to pass, additionally no extension whatsoever was given as evident from the Order , which is silent. That as regards to the extension given by the Board vide letter C.No.1(03)T O-II/2017 dated 14.11.2017, it is not valid by virtue of the fact that it has to be given prior to the lapse of currency of extended period of 60 days after lapse of initial period of 120 days i.e. on or before 19.09.2017. Resultantly the Order passed by the respondent on 27.11.2017, is barred by time by 129 days rendering it withou t power/jurisdiction, hence void, ab-initio and not enforceable under law as held in the reported judgments 2017 PTD 1756 and 2017 SCMR 1427 Collector of Customs Sales Tax Gujranwala and others v. Super Asia Mohammad Deen and Sons and others , 2008 PTD 60 Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. v. Collector of Sales Tax Gujranwala and others 2008 PTD 578 Messrs Hanif Strawboard Factory v. Additional Collector (Adjudication) Customs, Sales Tax and Central Excise Gujranwala, 2009 PTD 762 Messrs Tanveer Weaving Mills v. Deputy Collector Sales Tax and 4 others 2009 PTD (Trib.) 1263, Messrs Syed Bhai Lighting Limited, Lahore v. Collector of Sales Tax and Federal Excise, Lahore and 2 others 2009 PTD 1978 , Leo Enterprises v. President of Pakistan and others 2010 PTD (Trib.) 1010, Innovative Impex v. Collector of Customs, Sales Tax and Federal Excise (Appeal), 2011 PTD (Trib.) 79 Fazal Ellahi v. Additional Collector of Customs, MCC of PaCCS , 2011 PTD (Trib.) 987 Unique Wire Industries v. Additional Collector of Customs, MCC of PaCCS , 2011 PTD (Trib.) 1146 Kaka Traders v. Additional Collector of Post Clearance Audit and 2012 PTD (Trib.)
1650 Pak Electron Ltd. v . Collector of Customs, Lahore and others .
6. The appellant contended that intercepting goods transported with in the territory of Pakistan, by the subordinates of respondent No. 1 is tantamount to abuse of power as no interception can be made unless a provision exist in the Act or any notification is infield directing the appellant to provide documents of import or purchase prior to booking of the goods meant for transportation within the territory of Pakistan and the drive r of the carrier should contains those documents during the journey . No such section is available in the Act and nor any notification is in field.
Resultant interception of the transported goods at Hala Naka of National High Way by the subordinates of respondent No.1 is patently illegal, rather confirms without any ambiguity abuse of power and high handedness.
The appellant to state that it was mandate d upon the respondent No.1 and his subordinates to act within the frame work of the definition of the word "smuggle" given in subsection 2(s) of the Customs Act, 1969. For ease verbatim of the same is reproduced here-in-under: a) "smuggle" means to bring into or take out of Pakistan in breach of any prohibition or restriction for the time being in force, or evading payment of customs duties or taxes leviable thereon, i) Gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency , narcotics and narcotic and psychotropic substances; or ii) Manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the official Gazette, which , in each case, exceed [one hundred and] [fifty thousand rupees] in value or iii) Any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs station and includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly .
7. That customs ports etc. as expressed in clause (iii) of section 2(s) are notified through various notifications in terms of section 9 of Customs Act, 1969. Whereas, the border area of Pakistan Territory , whereas restriction on the possession of goods in certain areas (borders) as expressed in section 177 ibid is also notified vide Notification No. SRO 118(1)/83 dated 12.02.1983, earmarking the area of 5 miles adjacent to the Frontier of Pakistan with India and Iran to be the area to which Section 177 of the Customs Act, 1969 shall apply . The goods transported by the appellant to Messrs Arif Traders, Karachi for replacement, which appellant earlier purchased from him through valid sales tax invoices of the importer namely Selani and Selani, Karachi i.e. within the territory of Pakistan and this confirms that those were not brought into Pakistan in breach of any prohibition or restriction for the time being in force under the Import Policy Order , 2016 or while evading payment of customs duties leviable thereon as expressed in clause (a) of Section 2(s). Nor were brought into Pakistan by any other route than the routes expressed in section 9 or 10 of the Customs Act, 1969 or from any other place than a customs station as per Clause (a)(iii) of Section 2(s) instead were transported from Lahore to Karachi and those cannot be considered as smuggled by any stretch of imagination. Hence interruption of carrier loaded with the goods, their detention and .seizure subsequently for the purpose of adjudication is nullity to the definition of the word "Smuggle" rendering the entire act of the respondent No. 1 and the respondent No. 2 right from interrup tion till issuance of show-cause notice and subsequently passing order-in-original as ab-initio, null and void. It is also imperative for the appellant to add that in the light of expressed provision of Section 2(s) and Section 177 of the Customs Act, 1969 and SRO 118(1)/83 that the transportation of goods within the territorial limit of Pakistan do not constitute an offence , meaning thereby that transportation of goods from Peshawar to Karachi through National High Way supported by valid bilty and interception of those at Hala Naka, by the subordinate of respondent No. 1 cannot be termed as smuggling. It would also not be out of place to state that after clearance of the goods from Customs, either from Area of Sea Port or Dry Port, they are out of the ambit of Customs Department including the respondent No. 1 and any subsequent checking during transportation of those goods within the territory of Pakistan is beyond their jurisdiction as none of the provision of the Customs Act, 1969 authorizes any designated official of Customs to intercept the local transportation of good s on sham pleas of smuggling. Reference is placed on the order of the Tribunal in Customs Appeals Nos. K-719/ 02, H-720/02, H-686/03, Q-776/04, 2005 PTD (Trib.) 135 and PLD 1991 Supreme Court 630 .
8. The subordinates of respondents Nos. 1 and 2 and respondent No. 3 himself have to look into the 2nd aspect for confirmation of smuggling i.e. whether the goods so transported are retrieved from the hidden/false cavities made for time being or artificially made as defined in clause (b) of Notification No. 499(I)/2009 dated 13.06.2009, meaning thereby the space behind a truck or trailor for loading would not fall within the definition of false cavity .
Resultant, goods transported within the territory of Pakistan with the exclusion of area given in Notification No. 118(1)/83 dated 12.02.1983, cannot be presumed even through a. figment of imagination as smuggled. The appellant sold goods were transported openly at the hind of the carrier . Resultant, the goods loaded on the carrier cannot be intercepted, detained, seized as has been done by the respondent No. 1. The said act amounts to exercise of powers based on forced construction of law, rendering the same nullity to law. Reliance is placed on the order of Customs Appellate Tribunal in Customs Appeal H-185/2009 Noor Muhammad son of Muhammad Gul, lmtiaz Ali son of Pir Buksh v. Deputy Collector of Customs, (Adjudication) Hyderabad and Lahore High Court reported judgment 2010 PTD 2015 Collector of Customs v. Rehmat Afrid i. The 3rd aspect to be looked into, for determination of the goods sold/transported by the appellant or any other person is that whether those are freely available in the local market without any curb or restriction, if available then such goods does not fall within the degree of smuggled as defined in Section 2(s) of the Customs Act, 1969 and are per summed to have been tax and duty paid. The said opinion stood validated from the reported judgment of Apex Court 1995 SCMR 387 Sikandar A. Karim v. The State . The Double Bench of the Hon'ble Suprem e Court comprised of Justice Saeed-uz- Zaman Siddiqui and Justice Mukhtiar Ahmed Junejo held in unambiguous term that "If the item alleged to be smuggled by the prosecution were freely available in the open market and the import of such goods were not banned in the country , presumption could arrive that the goods in question were lawfully brought in the country unless contrary was shown". As per dictum laid down by the Hon'ble Supreme Court the Appellate Tribunal in Customs Appeal No.339/2000 Mr. Muhammad Hanif v. The State and 301/2003 Nasser Ahmed v. Collector of Customs, Sales Tax and Excise, Quett a that held that "to produce legal import documents is nothing but to, put undue pressure on the business commu nity inspite of the fact that it has been observed number of time by the Supreme Court of Pakistan that the goods which are freely available in the market are presumed to be have been legally imported and duty paid. Even otherwise no reasonable ground has been given in the order-in-original that even for the sake of arguments, it is taken that the receipt produced by the appellant and issued by Saifullah Khan have no legal status then also it cannot be concluded that the said transaction was illegal, making way to call upon appellant to produce import documents.
9. The respondents are correct, even then the onus to prove the allegation of smuggling rest on their shoulders under Articles 117 and 121 of Qanun-e-Shahadat (10 of 1984) as per laid down law by the Superior Courts of Pakistan namely S.M. Anwar Sethi v. South British Insurance Company Ltd. PLD 1975 Kar. 458; Barkat Ali v.
The State PLD 1973 Kar. 659; Cross on evidence 1967, 3rd Edn., London Butterworth; A Practical Approach to Evidence by Peter Murphy 1988 3rd Edn. London, Black Stone Press Ltd; The Modern Law of evidence by Adrian Kean 1985, 1st Den. Oxford , Professional Books Ltd.; Mst Safia Begum v. Mst. Malkani and another PLD 1965 Lah. 576; Akber Ali v. Ehsan Ellahi PLD 1980 Lah. 145; Government of Pakistan v. Moulvi Ahmed Saeed 1983 CLC 414; Muhammad Sarwar v. Fazal Rehman 1982 CLC 1286 Sardar Ghulam Nabi Khan v. Azad Government of State of Jammu and Kashmir 1984 CLC 325; Eastern Rice Syndicates v. CBR PLD 1959 SC
(Pak) 364; The Collector Central Excise and Land Customs v. Imdad Ali 1969 SCMR 708 and Messrs Latif Brothers v. Deputy Collector of Customs, Lahore 1992 SCMR 1083 . The said proposition of law was explained with clarity by their Lordship of High Court of, Sindh in reported judgment PLD 1996 Karachi 68 Kamran Industries v. Collector of Customs (Exports) and Order of the Custom Tribunal in Customs Appeal No. K- 391/04 Mr. Muhammad Mir v . Collector of Customs (Adjudication), Karachi . While holding that: "For every offence for which the accused is charged under the Customs Act he shall have to disprove the allegation of the Customs Authorities is entirely without any obligation upon the Customs Department to adduce evidence, it would amount to affording unfettered, naked and arbitrary discretion to the authorities who may at their sweet will make out false cases against importers without the need of proving the sanctity of their actions. Such cannot be the intention of Parliament while the Courts are under an obligation to place such construction on statutes which would be beneficial to the widest extent and which would make the legislation operate fairly, justly and equitably and not unreasonably (see Mst. Zainab v. Kamal Khan (PLD 1990 SC 1051 ). This Court is also of the view that a construction is to be placed upon statutes which would minimize the discreti on vested upon the executive authorities. As absolute power corrupts an interpretation fettering the discretion of the executive authority would be more in line with the principles of equity and justice. The issue regarding the applicability of section 187 is to be looked from another angle i.e. in case we were to hold that due to Section 187 the entire burden to dispute the entire case rest upon the accused alone. The executive authorities would be let loose and given a wide, naked and arbitrary discretion to operate without any guidelines which would then leave section 187 susceptible to a Constitutional challenge upon its vires on this score alone. By the interpretation as proposed above any redundancy or illegality would also be avoided.
10. The submission of the invoice, packing list, Goods Declaration, Sales Tax Invoices, Sales Tax Return, Annexures and Bilties substantiating purchase and import of the goods by the appellant which were being transported back to Karachi for replacement with the respondents he discharged the burden of proof and there was no cause or reason for the respondents to detain, seize the goods sold/transported by the appellant for the purpose of adjudication and nor for the respondents to order confiscation of those, rendering their act in derogation to the judgment of High Court of Lahore in C.A. No. 68/2002 Collector of Customs, Lahore v. S.M. Saleem . The Division Bench of the Lahore High Court, Lahore dismissed the appeal and maintain the order of the Tribunal while holding in Paras 6 and 7 that: "6- It is not denied before this Court that the goods subject matter of this appeal were importable. It is further not denied that the respondent had produced receipts before the Adjudicating Officer but he did not give any enable reason whatsoever as to why this piece of documentary evidence was not relied upon. The operative part of the judgment of the Deputy Collector Custo ms (Adjudicating) is to the effect that "since no documentary evidence indicating the proper import thereof has been furnished. It is hereby concluded that watches and watches part seized in this case have been brought into country without payment of duty and taxes."
7- The afore-referred view is not in conso nance with the law laid down by the August Supreme Court in Pakistan v. Ziauddin (PLD 1962 Supreme Court 440). Wherein the receipt of purchase and payment of money produce by the person from whom smuggled items were recovered was accredited with truth and the court held that he has discharged the burden of proof mandated in section 177 --A of the Sea Customs Act, 1878 at page 446 it was observed as under: The Section requires reasonable belief on'the part of the person seizing the goods that an act to defraud the government of duty has been committed. If a person purchases goods as in an ordinary market then in the absence of any suspicious circumstances of some definite fact leading to that inference the custom officer is not entitled to a reasonable belief that the Government has been defrauded of the duty payable on the goods. The ordinary method of the import of goods from outside into Pakistan is that they come through the customs barrier and the duty payable is infect paid. The presumption therefore, with respect to any goods which may be sold in the open market in the absence of an indication to the contrary would be that duty has been paid on them".
11. The irrespective of the referred in above factual aspect and discharge of burden of proof by the appellant despite not laid upon him, the appellant felt appropriate to rely upon judgment of the Hon'ble Supreme Court of Pakistan reported 2007 SCMR 10 Collector of Customs, Sales Tax and Central Excise v. Prof. Muhammad Khan and 6 others . Wherein their lordship of the Supreme Court examined the aspect that whether Directorate General --FBR can demand import docu ments of any goods or item within the city or during their transport within the territory of Pakistan or not and held that: "law certainly provided protection to a public servant for doing lawful act in discharge of his duty but no such immunity was to be claimed by a person for committing illegal act in his official capacity as a public servant in the absence of proof that the goods in poss ession of a person were brought into Pakistan in violation of any law, customs authorities and such other public functionaries had no authority to detain such goods merely on suspicion- --petitioner had showed documents of registration in his name to customs official who, having detained the car, insisted the production of import documents for release of car---- Detention of car was an act of highhandedness which was committed through misuse of official authority and it might constitute misconduct in terms of Civil Servants (Efficiency and Discipline) Rules, 1973 read with Removal from Service (Special Powers) Ordinance, 2000---- Exercise of official authority in a manner in which a person was made victim of misuse of process of law was violative of constitutional guarantees of rights of citizens and a person responsible for violation of such rights of citizens and a person responsible for violation of such rights was to face legal consequences--- Act of customs officials might also constitute misconduct, therefore, concerned authorities were under legal obligation to initiate appropriate proceedings against officials involved in the matter ."
12. The appellant further stated that as regards to the observation in Para 7 of the impugned Order that: "as per Section 73 of the Sales Tax Act, 1990, any transaction beyond Rs. 50,000/- has to be made through banking instrument. The appellant could not produce any such banking instrument against the above invoice and thus failed to establish link between the imported goods and the impugned goods" it out of context as submission of Sales Tax Invoices are sufficient, containing Sales Tax Registration No. of the importer , which Respondent No. 3 could have verified online by logging upon the portal of FBR. Even otherwise, the respondents fell short to refer the respective provision of the Sales Tax Act, 1990, wherein any restriction to the said effect has been laid. He also lost sight of the fact that payment of invoiced amount through cheque under Section 73 of the Sales Tax Act, 1990 is warranted in the cases where the tax payer has claimed refunds of the excess paid tax. To the contrary no such situation arose in the case of the appellant as on import by a commercial importer 3% value addition tax is ought to be charged by the customs in addition to the leviable sales tax of 17%, which has already been paid by the importer validated from the annexed Goods Decla ration. The respondent No. 3 also lost sight of the fact that he is a non entity in the matter of sales tax as he is not appointed as Commissioner of Inland Revenue (Appeals) under Section 30 of the Sales Tax Act, 1990, rendering his observation without lawful authority/jurisdiction and as such void and ab-initio and of no legal effect and cannot be made basis for confiscation of the goods when those were lawfully legally imported and were being transported from Peshawar to Karachi through valid bilty. The orders passed by the respondents Nos. 2 and 3 are bad in law and based on assumption/presumption and conjectures and adamant attitude and conform that it has not been passed by an independent authority instead by an officer of Clearance Collectorate and as such fail the test of judicial scrutiny . This type of order are deemed to be not passed independently and with the application of mind and provision of the Act, rendering it non speaking order and least confirms to the mandatory requirement of section 24-A of the General Clauses Act, 1897. Further validated from the fact that the respondent No. 3 has not rebutted the grounds of reply nor any reasoning/rationale has been adduced for ignoring those. Rendering the impugned order not being passed on objective consideration stand validated from its contents. Such type of orders are deemed to be always treated as illegal, void arbitrary and a result of misuse of authority vested in public functionary . No room was available for such illegal, void and arbitrarily orders in any system of law. If any authority , Court or Tribunal gave a finding of fact which was not based on material available on record was illegal arbitrarily without discussing and considering the material available on record it became perverse and a perverse finding of fact which is violative of the established principle of appreciation of evidence on record was not sustainable in law. The principle that every judicial or quasi-judicial finding should be based on reasons containing the justification for the finding in the order itself is an established principle of dispensation of justice. The Adjudication / Appellate orders are being violation of basic principle of the good governance ana mandatory requirement of Section 24A of the General Clauses Act, is not only illegal and void but also not sustainable under law. The said position is also fortified by the judgments of Superior Courts reported as 2005 YLR 1019 , 2007 PTD 2500 , 2004 PTD 1973 , 2005 YLR 1719 , 2003 PTD 777, 2003 PTD (Trib.)
2369, 2002 MLD 357, 1983 CLC 2882 , 2005 PTD 2519 , 2005 PTD 1189, 2003 PTD 2369 and PLD 1995 SC (Pak)
272, PLD 1970 SC 158 , PLD 1970 SC 173 , 1984 SCMR 1014 and 2012 PTD (T rib.) 619 .
13. The respondent No. 3 has not rebutte d the grounds of reply nor any reasoning /rationale has been adduced for ignoring those. Rendering the impugned order not being passed on objective consideration stand validated from it contents. 'Such type of orders are deems to be always treated as illegal, void, arbitrary and a result of misuse of authority vested in public functionary . No room was available for such illegal, void and arbitrarily orders in an system of law. If any authority , Court or Tribunal gave a finding of fact which was not based on material available on record was illegal arbitrarily without discus sing and considering the material availab le on record it became perverse and a perverse finding of fact which is violative of the established principle of appreciation of evidence on record was not sustainable in law. The principle that every judicial or quasi-judicial finding should be based on reasons containing the justification for the finding in, the order itself is an established princip le of dispensation of justice. The Adjudication / Appellate orders are being violation of basic principle of the good governance and mandatory requirement of Section 24A of the General Clauses Act, is not only illegal and void but also not sustainable under law. The said position is also fortified by the judgments of Superior Courts reported as 2005 YLR 1019 , 2007 PTD 2500 , 2004 PTD 1973 , 2005 YLR 1719 , 2003 PTD 777, 2003 PTD (Trib.) 2369, 2002 MLD 357, 1983 CLC 2882 , 2005 PTD 2519 , 2005 PTD 1189, 2003 PTD 2369 and PLD 1995 SC (Pak) 272, PLD 1970 SC 158, PLD 1970 SC 173, 1984 SCMR 1014 and 2012 PTD (T rib.) 619 .
14. Arguments heard and perused case record. Briefly black pepper was found in a truck. The truck driver produced a bilty and Goods Declaration KAPW --HC-- 82374 dated 28.10.2015. The seizing agency was not satisfied with the documents so the goods were seized. The learned council stated that the case can be decided on a short point of limitation. In terms of subsection (3) of Section 193A of the Custom s Act, 1969. The order against the appeal of respondent No. 3 had to be passed within 120 days from the date of filing of appeal, which was 23.03.2017 and order should had been passed by him on or before 21.07.2017, which he failed. No further extension of 60 days was given by him and this was due to the fact that no "exceptional circumstances-were available. For validating the delay in passing order , he placed reliance on the extension granted by the Board vide C.No.1(03)T0-1 1/2017 dated 14.11.2017, which is not valid by virtue of the fact that it has to be given prior to the lapse of currency of initial period of 120 days, extension granted by the Board on 14.11.2017 is nothing more than flogging a dead horse for giving a lease of lifer Any medication or cure has to be undertaken prior to demise of an issue, can't be revived even through artificial support when the issue had gone to the annul of history . Hence, the order passed by respondent No. 3 on 29.12.2017 is barred by time by 254 days. Rendering it without power/jurisdiction, hence void, ab-initio and not enforceable under law as held by Superior Judicial Fora in umpteenth reported judgment relied upon the appellant in ground No. (i) of the memo of appeal and which are applicable on the case of the appellant with full force.
15. The appellants validly argued that respondent No. 1 and his subordinates are appointed and designated as "Officer of Customs" under Section 3 of the Customs Act, 1969 and they derive powers for functioning from S.R.O 371(I)/2002 dated 15.06.2002 within the territory not falling within the ambit of sections 9 and 10 of the Act, and beyond 5 kilometer of the border of India and Iran in terms of Section 177 of the Act, to be read with Notification SRO Nos.188(1)/83 dated 12.12.1983. The transported goods does not at all fall within the ambit of Section 2(s) and Section 177 of the Act, instead are lawfully imported after completion of Codal formalities by the Custom Officials. Respondent No. 1 and his subordinates are not even empowered to ask from either the transporter or owner of the transported goods or from appellant about the legality of the transported goods, in the absence of enabling provision in the Act/Rules. There does not exist any provision in the Act or notification to the said effect i.e. directing the person who is transporting goods from Karachi within the territory of Pakistan should keep either GD or purchase bills of the goods. In the absence of availability of any section in the Act and the notification, demanding GD/Purchase Receipt is nullity to law and hold no ground and the stance of appellant stands validated from the reported/un-reported judgments K-719/02, H-720/02, H-686/03, Q-776/04, 2005 PTD (Trib.) 135 and PLD 1991 Supreme Court 630.
16. The contention of appellants holds ground and carries weight that the goods transported were legally purchased from the importer , who obtained their clearance from the MCC of Appraisement-W est after fulfillment of all the codal formalities meaning thereby those were neither brought by the appellant into Pakistan in breach of any prohibition or restriction for the time being in force under the Import Policy Order, 2017-18 or while evading payment of customs duties leviable thereon as expressed in clause (a) of Section 2(s). Nor were brought into Pakistan by any other route then the route s expressed in Section 9 or 10 of the Act, or from any other place then a customs station as per clause (a)(iii) of Section 2(s) and their value is below to Rs. 150,000.00 and were lawfully transported from Karachi to Peshawar by the appellant, thereafter 50 bags from Peshawar to Karachi for replacement by the seller through valid bilties, hence cannot be considered as smuggled through any stretch of imagination. Hence, interception of Trailer , detention, seizure, and preparation of contravention report for the purpose of adjudication is nullity to the definition of the word "Smuggle" rendering the entire act of respondent No. 1 and his subordinates and the issuance of show-cause notice and passing of order-in-original/appeal by the respondents Nos. 2 and 3 as ab-initio, null and void. The expressed provision of Section 2(s) and Section 177 of the Act and SRO 118(I)/83 confirms that the transportation of the goods within the territorial limit of Pakistan do not constitute an offence, meaning thereby that transportation of the goods cannot be termed as smuggled goods. And as such cannot be construed contrary to that. None of the officials are permitted to act beyond their allotted sphere alike respondents only for the purpose of denying transportation of the appella nt goods on the sham plea of smuggling or good faith.
17. The appellants raised the point of burden of proof when GD was produced. It is of paramount importance to adduce here that the framer of law in order to thwart the act of smuggling and flourishing business of smuggled goods have formulated a strict confiscatory regime with a very extended connotation and law is set in motion not only against the actual smuggler , but also against those who came into possession of the delinquent goods after having acquired the frame. Section 187 and clause (2) of Section 156 of the Act come into motion on every occasion when goods are seized. Scrutiny of the essence and spirit of Section of the Act would transpires that these provisions are to be used in juxtaposition, the golden thread of Criminal Law that "it is the duty of the prosecution to prove the prisoner's guilt " the question that then arise as to what extent such burden lies upon the person found in possession of alleged smuggled or prohibited goods and as to whether same at any stage shifts upon the Customs Authorities or not; in this context placing reliance on reported judgment titled Kamran Industries v. Collector of Customs (Export) PLD 1996 Kar.
68. In which the Division Bench held in regards-,to legal and persuasive burden and the evidential and technical burden on the litigants under Section 187 of the Act in so many words that: "For every offence for which the accused is charged under the Customs Act he shall have to disprove the allegation of the Customs Authorities is entirely without any obligation upon the Customs Department to adduce evidence, it would amount to affording unfettered, naked and arbitrary discretion to the authorities who may at their sweet will make out false cases against importers without the need of proving the sanctity of their actions. Such cannot be the intention of Parliament while the Courts are under an obligation to place such cons truction on statues which would be beneficial to the widest extent and which would make the legislation operate fairly, justly and equitably and not unreasonably (see Mst. Zainab v. Kamal Khan (PLD 1990 SC 1051 ). This Court is also of the view that a construction is to be placed upon statutes which would minimize the discreti on vested upon the executive authorities. As absolute power corrupts an interpretation fettering the discretion of the executive authority would be more in line with the principles of equity and justice. The issue regarding the applicability of section 187 is to be looked from another angle i.e. in case we were to hold that due to Section 187 the entire burden to dispute the entire case rest upon the accused alone. The executive authorities would be let loose and given a wide, naked and arbitrary discretion to operate without any guidelines which would then leave section 187 susceptible to a Constitutional challenge upon its vires on this score alone. By the interpretation as proposed above any redundancy or illegality would also be avoided."
18. The appellant submitted import documents/bilties and sales tax invoices/return and respective annexures of the transported goods from Karachi to Pesha war and vice versa. Hence, he discharged burden laid upon him as. held by the Hon'ble High Court of Sindh in the judgment referred in para supra and the burden stands shifted on the shoulder of the respondent No. 1 and his subordinates as per the contemplation of Articles 117 and 121 of Qanun- e-Shahadat (10 of 1984), which they miserably failed to prove, even in the presence of availability of confirmation of sale/replacement and in regards to veracity of the issued sales tax invoices corresponding to the goods. All the relied upon documents by the appellant are vital documents and cannot be ignored summarily by the respondents.
The DR was asked on different hearing to verify the rules for invoices but the department, did not reply and only stated that they will not verify until banking instrument is not provided.
19. Before parting with the judgment, it is vital to comment on the observation of respondent No. 2 adduced in Para 7 of the impugned Order that: "as per Section 73 of the Sales Tax Act, 1990, any transaction beyond Rs. 50,000/- has to be made through banking instrument. The appellant could not produce any such banking instrument against the above invoice and thus failed to establish link between the imported goods and the impugned goods" it out of context as submission of Sales Tax Invoices are sufficient, containing Sales Tax Registration Number of the importer , which Respondent No. 2 could have verified online by logging upon the portal of FBR. Even otherwise, the respondents fell short to refer the respective provision of the Sales Tax Act, 1990, wherein any restriction to the said effect has been laid. He also lost sight of the fact that payment of invoiced amount through cheque under Section 73 of the Sales Tax Act, 1990 is warranted in the cases where the tax payer has claimed refunds of the excess paid tax. To the contrary no such situation arose in the case of the appella nt as on import by a commercial importer 3% value addition tax is ought to be charged by the customs in addition to the leviable sales tax of 17%, which has already been paid by the importer validated from the annexed Goods Declaration. The arguments of appellant carries weight that respondents are non entity in the matter of sales tax by virtue of the fact that they are not appointed as Officer/Commissioner of Inland Revenue (Appeals) under Section 30 of the Sales Tax is ought to be charged by the customs in addition to the leviable sales tax of 17%, which has already been paid by the importer validated from the annexed Goods Declaration and are non entity in the matter of sales tax by virtue of the fact that they are not appointed as Officer/Commissioner of Inland Revenue (Appeals) under Section 30 of the Sales Tax Act, 1990, rendering their observation without lawful authority/jurisdiction and as such void and ab-initio and of no legal effect and cannot be made basis for confiscation of the goods when those were lawfully legally imported and were being transported from Peshawar to Karachi through valid bilty .
20. In the light of above deliberation and adhering the ratio decidendi set-forth by the judicial fora, I, hold that the interception, detention, seizure, preparation of contravention report by respondent No.1 /subordinates and issuance of show-cause notice and passing of order-in-original by respondents Nos. 2 and 3 are ab initio, illegal, void and as such is of no legal effect. Therefore, I, annul those and set aside the order passed by the forum below and restore the goods to the appellant unconditionally .
21. Appeal is allowed as no order to cost.