Through instant Reference Application under Section 196 of the Customs Ordinance, 1969, the following questions of law, asserted to have arisen out of impugned judgment dated 08.01.2018, passed by learned Customs Appellate Tribunal, Bench-II, Lahore (" Appellate T ribunal" ), have been proposed for our opinion:- i) "Whether the learned Appellate Tribunal has not erred on law to underrate and ignore the crucial forensic evidence? ii) Whether the learned Tribunal has rightly ignored the vital importance of the intactness/genuineness of the rivets & bolts mechanism of the container in-transit which ensures the integrity of the bonded cargo? iii) Whether the learned Tribunal has rightly ignored the other ancillary corroborating circumstantial evidence such as shabby condition of goods found on examination? iv) Whether the learned Tribunal has not given an inconsistent and conflictin g judgment viz-a-viz Tribunal's judgment dated 03.01.2018 in the case even arising out of the same Order-in-Original No. 26/2016. In the said judgment dated 03.01.2018 passed in identical case of Customs Appeal No. 384 LB/2017 (M/s. Pak Shaheen Cargo Services (Pvt) Ltd. vs. Additional Collector Customs Adjudication Faisalabad and others ) the learned Tribunal remanded the case back to the adjudicating authority for decision afresh? v) Whether the learned Tribunal has rightly quashed the adjudication order and ordering release of goods which are involved as case property in the criminal proceedings against the importer and bonded carrier vide FIR No. 06/2015 dated 13.07.2015 pending before the Special Judge (Customs & Taxation) Lahore? vi) Whether the learned Tribunal's impug ned judgment is not skewed, lopsided and unilateral insomuch as the respondent department's written arguments (i.e. para-wise comments) have been blacked out whereas appellant's arguments have been reproduced and considered to the exclusion of the respondent department's arguments? vii) Whether on the facts and circumstances of the case, the learned Customs Appellate Tribunal has not erred in law and facts by holding that the importer has not violated Section 26.79.80 of Customs Act, 1969 and by holding that importer has not committed offence of misdeclaration/tax Fraud in terms of Section 32 and 32A of the Customs Act, despite presence of corroborative evidence and Forensic report of Punjab Forensic Science Agency (24-6-16) that the Nuts and Bolts of the doors of the subject containers have been replaced/un-matched?"
2. Brief facts of the case are that a show cause notice regarding alleged discrepancies in description, misuse of bonded carrier , non-traceability of the importer representative, involvement of cartel of persons involved in the business of replacement of transshipped goods etc., was issued to respondent, which culminated in passing Order- in-Original dated 03.03.2016. Feeling aggrieved, respondent filed appeal before learned Appellate Tribunal, which was disposed of and applicant-department was directed to release the merchan dise in question on payment of requisite duties and taxes, vide judgmen t dated 08.01.2018, which has been impugned through instant reference application.
3. Learned counsel for the applicant was confronted with the impugned findings given by learned Appellate Tribunal that are of facts, hence, no question of law arises out of the impugned order . Despi te arguments at some length, he could not give any satisfactory response.
4. Arguments heard. Record perused.
5. Perusal of record shows that after comparison of transshipment declaration with impugned examination report, learned Appellate Tribunal gave findings of facts that no deviation was found in contents of impugned cargo and no sufficient material much less any material existed on record to substantiate prosecution case, rather entire case was based on suspicions, thus, lacked ingredients of statutory show cause notice. The operative part of impugned judgment is reproduced hereunder: "10. We begin by noting that unless there is prima facie material showing that the importer had committed a breach of the substantive provisions of the Customs Act, 1969, he cannot be convicted on the sole fact that he abandoned his Cargo or that the merchandise was shabbily packed; Even the Laboratory Report with context to tampering in doors of impugned Cargo Container being heavily relied upon by the department does not impart any conclusive proof supporting the occurrence of event of replacement of Cargo The Transshipment Declaration was also comparatively perused by this Tribunal with the impugned examination report however we found NIL deviation in the contents of impugned Cargo. We are of the considered opinion that no sufficient material much less any material exists on records to substantiate the prosecutions' case moreover the charges raised in the impugned show cause notice are generic and vague, lack details and are unintelligible and are entirely based on suspicions thus lack ingredients of a statutory show cause notice delineated under the Customs Act, 1969."
6. Needless to say that the findings of facts recorded by learned Appellate Tribunal, unless found to be either perverse or contrary to record, cannot be interfered with by the High Court, while examining questions of law proposed under the law. Scope of reference jurisdiction under the law is restricted only to the extent of examining questions of law arising from order passed by learned Appellate Tribunal and not :to decide questions of facts, or for determining disputed facts. Reference is made to Messrs F.M. Y Industries Ltd.v . Deput y Commissioner Income Tax (2014 SCMR 907), Commissioner Inland Revenue, Zone-I v. Messrs Industrial Chemicals (Pvt.)
Ltd, (2017 PTD 756), Commissioner of Income Tax u. Ghee Corporation of Pakistan (Pvt.) Ltd. (2017 PTD 1167), Commissioner Inland Revenue v. Messrs Adeel Brothers (2017 PTD 1579 ) and Commissioner Inland Revenue, Zone-II v . Al-Hamad International Container T erminal (Pvt.) Ltd. (2017 PTD 2212 ).
7. Since the decision by learned Appellate Tribunal is based on findings of facts, therefore, we decline to exercise advisory jurisdiction.
This Reference Application is decided against applicant department.
8. Office shall send a copy of this order under seal of the Court to the Appellate Tribunal as per Section 196(5) of the Customs Act, 1969.