JUDGMENT : SYED SARDAR HUSSAIN SHAH, MEMBER JUDICIAL/CHAIRMAN.--(1). The instant appeal as well as Appeal No, Cus.63/PB/2017, Cus.64/PB/2017, Cus.66/PB/2017, Cus.68/PB/2017, Cus.78/PB/2017, Cus.79/PB/2017 and Cus. 47/PB/2017 involved common question of law and facts, therefore are proposed to disposed of through this single judgment.
2. Brief facts as per prosecution story in the appeal in hand are that vide Contravention Case No, 02/2015 dated 02.10.2015 received from the Assistant, Collector , Customs AFU, MCC Peshaw ar vide letter C.No,904 dated 13.11.2015, during course of audit of import record AFU, MCC Peshawar for the period 2012-13, carried out by an Audit Team of Internal Audit, Directorate of Internal Audit (Customs), Islamabad, pointed out in Proposed Draft Para No, 4 issued vide C. No, 1(02) IAC/2014-15/lbd dated 30.9.2014 that duty free advance import of eight (08) consignments of 109.642 Kg Gold valuing Rs, 467.830 million at AFU, MCC Peshawar by M/s. Muhammad Khaliq Jewelry & Gems Stone Centre (NTN No, 4048140) through M/s. Sharif Customs Agency during April 2013 to June 2013 whereas in the light of para 10 read with para 5(2) of SRO 266(1)/2001 dated 7.5.2001, the contracted quantity of gold jewelry for which advance import was required to be exported within 180 days from the date of import. However , M/s. Muhammad Khaliq Jewelry & Gems Stone Centre exported nothing against such imports. According to para 5(2) of the SRO, if the importer fails to export the jewelry within the stipulated period, the importer has to pay revenue foregone by Collectorate at the time of import alongwith penalty @ 5% of the leviable duty and taxes for first month and @ 10% of the leviable duty for subsequent months. Therefore, Contravention Case was framed against the importing firm for violation of 16 & 32(a) of Customs Act, 1969 read with SRO. 266(1)/2001 dated 07.5.2001, section 3 of the Sales Tax Act, 1990, section 3(1) of Import and Export (Control) Act, 1950 and section 148 of the Income Tax Ordinance 2001, punishable under section 156(1) (9) & (14-A) of the Customs Act, and section 3(3) of Imports and Exports (Control) Act, 1950.
3. Subsequently , the matter was placed before the Adjudicating Officer, who issued a show cause notice dated 30.11.2015 to the (1) M/s. Muhammad Khaliq Jewelry & Gems Stone Centre (Importer) calling upon him as to why the evaded amount of duty/taxes amoun ting to Rs, 153.744 million should not be recovered from him under the above mentioned provisions of law. Vide Order-in-Original No, 06/2016 dated 25.01.2016, the Collector Customs (Adjudication), Islamabad ordered for the recovery of evaded amount of Rs, 153,744 million from the Importer M/s. Muhammad Khaliq Jewelry & Gems Stone Centre (Importer) C/O M/s. Sharif Customs Clearing Agency NWR Plaza Qayyum Stadium Peshawar . He also imposed a penalty of Rs, 2,000,000/- upon the importer besides imposition of penalty of Rs, 100,000/- on the Customs Clearing Agent i,e,, the appellant. Hence the instant appeal.
4. We have heard and gone through the record of the case with the able assistance of the counsel of the appellant and the representative of the respondents.
5. After lengthy hearing we have examine the show cause notice, there is no allegation against the appellant in the show cause notice dated 30.11.2015. In the show cause notice, main contention bone of the prosecution whereas no allegation has been leveling against the appellant. As per law in vogue one cannot go beyond the show cause notice. The object of the show cause notice as prescribed in Section 180 of the Customs Act, 1969 is to inform the concerned parties besides indicating him/them about the nature of contravention, and the proposed action to be taken against him, and that he should know about the allegation against him, as he has to prepare to defend himself.
6. We do feel sorry against the lower forums when there is no name or allegation against the appellant in the show cause notice then how he was dragged into the courts. An innocent citizen was harmed through illegal and without lawful jurisdiction. The exercise of power s in this scenario is arbitrary and without any foundation, we allow these appeals and impose costs of Rs, 5000/- on the customs authorities.