SYED SARDAR HUSSAIN SHAH, MEMBER JUDICIAL/CHAIRMAN .----This single judgment shall dispose of instant appeal as well as connected appeal bearing No. 31/CU/IB/2019 as the same question of law and facts involved in both the appeals.
2. Brief facts of the case as per prosecution story the Anti-Smuggling Staff of Directorate of I&I-Customs, Rawalpindi intercepted a Hino Trailer truck bearing Registration No. Z-7193 (Peshawar) loaded with 40-feet Container No.CRSU-9103958, near Dham ma Stop, Fateh Jhang Road, Tehsil and District, Attock, being driven by Muhammad Gul. Rasool Khan, Driver/Owner of Trailer/T ruck, having CNIC No. 17301-1599765-9, Rio Urmur Bala, Tehsil and Distt, Peshawar . Thorough search of the vehicle/container was conducted in the presence of witnesses/owner and driver of the vehicle. On demand he produced colored scanned photocopy of GD bearing No. QPGR-HC-617 dated 14.04.2017 in respect of loaded foreign origin Rani Float (Juice) 240-ML and Bilty No.505 dated 26.01.2019 issued by Sitara Al Usman Goods Forwarding Agency , Plot No. B-17 New Truck Stand Hazar Ganji Quetta. The loaded foreign origin goods along with Hino Trailer truck bearing Registration No.Z-7193 and 40- feet Container No. CRSU9103958 were detained under section 17 of the Customs Act, 1969 with the approval of competent authority for further verification of legal import and payment of duty/taxes etc. Notice under section 26 of the Customs Act, 1969 was also served upon the driver/cleaner of the trailer namely "Muhammad Gul and Wali Khan for production of import documents in respect of above mentioned recovered foreign origin goods within three days.
3. Subsequently , after completion of the requisite formalities, the matter was placed before the Adjudication Officer, who issued a show-cause notice C.No.V -Cus/Coll/Adj/36/2019/278 dated 08.03.2019 and vide Order-in-Original No. 20 of 2019 dated 19.03.2019, the Collector of Customs (Adjudication), Islamabad ordered, outright confiscation of seized goods mentioned at serial Nos. 1 to 6. However an option was given to the owner of the truck/trailer to redeem the same against redemption fine of 20% of the Customs appraised value. Hence these appeals filed by the owners of the goods mentioned at serial Nos. 1 to 5.
4. I have heard argument of both the parties and has gone through the record with the able assistance of the learned counsel for the appellant and representative of the respondents.
5. The customs staff recovered the seized goods from trailer No.Z-7193 near Dhumma Stop near Fateh Jhang Road, Tehsil and District Attock. Perusal of whole record does not disclose that whether these goods were transported from Peshawar to Rawalpindi or Rawalpindi to Peshawar , the record only disclose that the goods were taken into possession by the customs staff at Fateh Jhang Road, Near Dhamma Stop, Tehsil and District Attock.
On this basis appellants were charged for smuggling of the goods and a contravention case was registered under section 2 (s), a show-cause notice was issued to the appellant on the allegation of smuggling. During the hearing Representative of Respondents was asked to clarify whether these goods were on its way from Peshawar to Rawalpindi or Rawalpindi to Peshawar , he is unable to reply this question. It like to be seems that whether the goods taken into possession by customs staff at Fateh Jhang road is a border or it was an unauthorized route.
Fateh Jhang is far away from the border area so it can be safely presume that the transportation of the same stuff was not fall under section 2(s) which clearly depicts that smuggle means to bring or take out of Pakistan, in breach of any prohibition or restriction for the time being in force. Counsel for the respon dents press into service section 2(s), (iii), that any goods by any routes declared under sections 9 and 10 or from any place other than customs stations but he does not take pain to read this clause of section 2(s) with clause (ii), which exclude the goods other than a route declared under section 9 or 10, or place other than a customs station clause (ii) of section 2(s) is reproduced as under:-
(ii) manufacturer of gold or silver or platinum or palladium or radium or preciou s 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 He further refer to SRO 499(1)/2009, according to which no option shall be given to pay fine in lieu of confiscation in respect of the smuggle goods falling under subsection (s) of section 2 of the Customs Act, 1969 but strangely the recovery of goods at Fateh Jhang which far away from border is a proper route did not-fall under clause (s) of section 2 of the Act ibid. Clause (s) of section 2. reproduced as under .
Section 2(s) "Smuggle" means to bring. or take out of Pakistan, in breach of any Prohibition or restriction for the time being in force, or en route pilferage or transit goods or evading payment of customs-duties or taxes leviable thereon.
6. It is held by Balochistan High Court, Quetta in Customs Reference No.03/2008 passed on 20-10-2008 titled as Collector of Customs Quetta v. Wali Jan and others that "No offence was made out against respondents as the tyres were seized at a place situated between Kuchlak town and Quetta city which being finding of fact are not liable to be interfered in the instant refere nce as no point of law is involved in it. It is not disputed that the seized tyres were used tyres and were new one giving rise to any presumption of being smuggled one, particularly when same were seized not near the border but for -away from it.
7. It is held by Lahore High Court, Lahore in judgment dated 13.11.2002 passed in C.A. No. 68/2002 titled as Collector of Customs v. S. M. Saleem Partner "If a person purchases goods in an ordin ary market then in the absence of any suspicious circumstances or some definite facts leading to that inference the Customs 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 payable is in pact paid. therefore, with respect to any goods which may be sold in open market in the absence of an indication to the contrary would be that duly has been paid on them".
8. Counsel for the respondents also refer to SRO 237(1)12019, perusal of which reveals that it is in respect of Import Police Order , 2016 as the same has no relevancy in the present case, as the present case is not of the Import, according to the stance of the appellant goods were purchased in an open market at Rawalpindi and he was transported these goods to Peshaw ar, which facts is confirmed from the bilty. In the impugned order dated 19.3.2019, the Learned Collector of (Adjudication) at para 9 directed the department for the destruction of goods mentioned at serial Nos.1 to 5, this direction of the Collector has not been in accordance law. When the case has not been finally decided by the Appellate fora, how he can passed the direction to destroy the goods which order of Collector (Adjudication) has not been supported by any law. Counsel for the respondents argued that there is no import document with the appellant but he admitted that bilty is available with them, the answer of this question is available in above para.
9. In view of the above, I allow this appeal, modify the Order-in-Original No. 20 of 2019, dated 19.03.2019 of Collector of Customs (Adjudication), Islamabad to the extent of goods mentioned at serial Nos. 1 to 5 that may be released to the appellants unconditionally . In case, the customs authorities did not hand over the good well in time to the appellant as question of expiry edibles items is involved then they will be responsible for the loses, any sustained to the appellant due to the expiry of the stuf f.