MUSARRA T HILALI, J.----Through this single judgment, we propo se to decide two connected Writ Petitions bearing No. 2121-P/2021 (Abdul Qadeer and others v. Director of Intelligence and Investigation, Customs and others) and No. 2122-P/2021 (Messrs Hamdaan Enterprise and another v. Collector of Customs (Appraisement and Facilitation) MCC, Customs House, Peshawar and another), as both the matters have common questions of law and facts involved therein.
2. Petitioners in both the petitions seek the following relief:-
1. That the goods are perishable in nature. The circumstances are extraordinary as the item in question being a perishable item runs the risk of being ruined or reducing its shelf life, thus, rending it for no use of the importer or the state therefore, the respondents may be directed to release the petitioners goods subject to furnishing of security instrument equivalent to the leviable amount of customs, duty and taxes. ii. That this Hon'ble Court may issue restraining order to the respondents from any auction proceedings or any coercive / adverse action on the basis of Order-in-Original No. 132 of 2021 dated 29.04.2021 and Order-in-Original No. 1667783 of 2021 dated 22.04.2021, till the final decision of the tribunal in the petitioners' appeal, pending adjudication before the tribunal. iii. That this Honible Court may be pleas ed to suspend the operation of Order-in-Original No. 132 of 2021 dated 29.04.2021 and Order-in-Original No. 1667783 of 2021 dated 22.04.2021, till the final decision of the tribunal in the petitioners' appeal, pending adjudication before the tribunal.
Facts of W .P.No. 2121-P/2021
3. In essence, it is the petitioners' case that foreign origin Iranian cream, brand Chibo (made with pure milk) were seized by the respondents on the charge of being non-duty paid and smuggled one along with vehicle bearing Registration No. TKH-748-Quetta. The case was submitted before the Adjudica tion authority , who, vide order- inoriginal dated 29.04.2021, ordered outright confiscation of the goods. Against that, petitioners filed appeal before the Appellate Tribunal Customs Bench, Peshawar , however , due to dysfunctional of the ibid Tribunal, they have filed the instant constitutional petition.
Facts of W .P.No. 2122-P/2021
4. Brief facts of the captioned case are that PVC Coated Fabric and Plastic Mesh were seized by the respondents involving infringement of customs laws and brought into the country in violation or Section 16 of the Customs Act, 1969 read with Section 3(1) of the Imports/Exports Control Act, 1950. The case was submitted before the Adjudication authority , who, vide order-in-original dated 22.04.2021, ordered outright confiscation of the goods.
Against that, petitioners filed appeal before the Appellate . Tribunal Customs Bench, Peshawar , however , due to dysfunctional of the ibid Tribunal, they have filed the instant constitutional petition.
Arguments heard and appended record gone through.
5. At the outset, learned counsel for the petitioners drew our attention to the order passed by this Court in case titled "Dil Nawaz Khan and others v. The Director , Directorate of Intelligence and Immigration (Customs)
Peshawar and others (W.P No.37-P/2021) wherein directions were made for the release of items which were perishable in nature on payment of leviable taxes and duties. In the instant case too, the items seized by Customs in Writ Petition No.2121- P/2021 are perishable in nature having its expiry dates, therefore, keeping them in a customs warehouse is not really called for, particularly when the petitioners are ready to deposit security equivalent to the leviable amount of customs duty and taxes.
6. I n view of the above, the respondents are directed to immediately release the stock to the petitioners i.e. Iranian cream, brand Chibo (made with pure milk) which is perishable item subject to payment of leviable tax and duties which shall remain with the respondent as security pending adjudication of the appeal of the petitioner and its decision.
7. As regards PVC Coated Fabric and Plastic Mesh it shall not be auctioned subject to decision of appeal by the Customs Tribunal.
8. Accordingly , this and the connected writ petition are disposed of.