SYED ARSHAD ALI, J. This is a Custom Reference filed by the Collector Customs under Section 196 of the Customs Act, 1969 ("Act") against the judgment/order passed by the learned Custom Appellate Tribunal dated 23.07.2011 ("Tribunal"), for adjudication of questions of law framed in the memo. of reference, purportedly arising out of the judgment of the worthy Tribunal.
2. Brief facts of the case are that on 23.11.2009, Customs Anti-smuggling Unit D.I. Khan intercepted a Bed Ford Truck bearing Registration No.K-9529-Peshawar near Shinwari Petrol Pump, Bannu Road D.I. Khan. The search of the said vehicle led to the recovery of foreign origin smuggled welding electrodes and black tea. The occupant of the vehicle namely Irfan Ullah son of Khadi Gul (Driver) and Nisar son of Siraj-ud-Din (Cleaner) could not produce the import documents relating to welding electrodes, however, they produced photocopy of GD No.1-HC-867123-020109 and sales tax Invoice No.176 dated 20.10.2009 for black tea of 20-bags. Accordingly, show-cause notice was issued to the respondent. In response to the notice in respect of 20-bags of tea, Fakhr-e-Alam Paracha, Managing Director, Khyber Tea and Food Company, Peshawar ("Company") filed a reply to the show cause notice; wherein it is alleged that the total quantity of 1000 kg of blended black tea was purchased at the rate of Rs.300/- per kg including sales tax against valid sales tax invoice No. 196 dated 10.11.2009 from M/s. SPATCO'S 215 Panorama Centre-I, Fatima Jinnah Road, Karachi.
The importer also issued him goods declaration copy whereof was annexed with the reply. The said purchased tea is duly reflected in the register of stock maintained by the Company in terms of Section 22 of the Sales Tax Act, 1990.
3. The learned adjudicating officer not being satisfied with the reply of the respondent has passed the following order:- "c. The 20-bags of black tea weighing 1280-kgs was claimed by M/s. Khyber Tea Company, R. No.13 Saleman Plaza, Kachery Gate, Peshawar. The respondent produce Sales Tax Invoice No.176 dated 20.10.2009 for its purchase and Sales Tax Invoice Nos.10 and 11 dated 20.11.2009 for its further sale in the market. The respondent produced copies of inward outward stock register and other relevant documents. But on verification of Sales Tax Invoice from Regional, Peshawar, the same were found and fabricated and confiscated the goods/blended under the relevant provisions of the Act."
4. The said order was challenged by the Company before the Collector Appeal through Custom Appeal No.232/2010.. The learned Collector Appeal vide impugned order dated 27.08.2010 dismissed the said appeal. The Company through second appeal has challenged the orders of both fora below through Custom Appeal No.358/PB/2010 before the Tribunal. The said appeal was allowed in the following manner: - "14. A question also arises that once a G.D and other relevant documents were produced during adjudication before the Assistant Collector, which pertains to the seized consignment, without investigation, then how one can declare the same as smuggled goods or the documents are irrelevant. Similarly, the allegation in the show-cause notice that the company is using irrelevant import/purchase documents, is not proved and the documents which even produced during adjudication are tallying with the seized consignment. The contents of seizure report incorporated in the show-cause notice containing incorrect facts, have no legal sanctity. Reliance in placed on 2008 PTD (Trib.)
36. Furthermore the submission of the DR that the goods were brought into the country through unauthorized routes and liable to confiscation in terms of Section 2(s) of the Customs Act, 1969 is not tenable as the tea does not fall in the Appendix-A (banned item) and freely importable nor is restricted under the Import Policy, therefore, any presumption of their being smuggled goods require direct evidence, which is not so in the present case. Reliance is placed on 2005 PTD (Trib.) 135.
15. In view of the above discussion, I allow the instant appeal, set aside both the impugned Order- in-Original No.34/2010 dated 12.04.2010 as well as Order-in-Appeal No.464/2010 dated 27.08.2010 and order that the seized black tea be restored to its lawful owner, if not required in any other case."
5. The Collector Customs through the instant reference has raised good number of questions of law, however, the essential question is that it is the claim of the respondent company that the blended tea was purchased through invoices mentioned in their reply and against that, it is the case of the department that the said invoices are irrelevant and fake. Two forum i.e. Adjudicating Officer and Collector Appeal have concurred with the department by holding the said invoices irrelevant, whereas, the learned Tribunal after going through the said invoices have held the same as relevant and thus held that the recovered blended tea was legally imported against payment of duties. This is indeed a question of fact which has been finally determined by the Tribunal and the law is by now settled that reference before this Court only lies when there is a substantial question of law raised for adjudication and the question of fact once determined by the Tribunal cannot be re-agitated before this Court as the jurisdiction of this Court under Section 196 of the Customs Act is limited only to answer question of law. "Messrs Zarghoon Zarai Corporation v. Collector of Customs and another (2006 PTD 534), Pak Suzuki Motors Co. Ltd., Karachi v. Collector of Customs, Karachi (2006 PTD 2237), Collector of Customs v. Messrs Noman Chugtai (2007 PTD 153), Messrs Ittehad Textile Industries (Pvt.) Ltd. v. Collector of Sales Tax Collector of Sales Tax and Central Excise, Faisalabad (2007 PTD 663), Assistant Collector of Customs Sambrial Dry Port, Sialkot v. Messrs Al-Badar Poultry Farms, Wazirabad (2004 PTD 2683), Messrs B.P.
Industries, Karachi and others v. The Additional Collector of Customs, Sales Tax and Central Excise (Adjudication) and another (2008 PTD (Trib.) 36)".
6. Resultantly this customs reference being not maintainable is accordingly dismissed and answered in negative. Copy of this judgment be sent to the learned Tribunal in terms of section 196(5) of the Act.