Muzamil Akhtar Shabir J. Through this Single order , we intend to dispose of two connected Custom References bearing Nos. 44631 and 44640 of 2022 as both having similar facts have arisen out of the same consolidated judgment and the same question of law has been raised in them for our opinion.
2. Through these References under Section 196 of the Customs Act, 1969, the applicant-department has called in question judgment dated 03.02.2022 passed by Customs Appellate Tribunal, Bench-II, Lahore ('Appellate Tribunal') , whereby while allowing the appeal filed by the respondents etc., the impugned order-in-original Nos.
273 to 276/2020 in four connected cases all dated 27.10.2020 have been set-aside, and inter alia have raised the following legal question for our opinion: "Whether the learned Customs Appellate Tribunal has erred in law by declaring lawful exercise of powers u/s. 163 of the Customs Act, 1969 by the officer of the seizing agency as unlawful?"
3. The facts of these connected cases are similar hence reproducing the same in detail separately is not necessary , however , brief gist of facts as narrated in impugned order is that the Directorate of Intelligence & Investigation- Customs, Lahore recovered 28,323 cartons, measuring 36,172.1 1 Sq. Mtrs of China Origin, ceramic/porcelain tiles of assorted Brands, Description and Sizes from godowns of the respondents situated at near Shaheen Marble opposite Bhoptian Nala, Raiwind Road, Lahore and 34-1-C, College Road, Lahore for which no documents in justification of legal import or lawful possession of the foreign origin goods were produced and the same were detained on 27.06.2020 to 29.06.2020 and 01.07.2020 respectively , under Section 2 (kk) and 186 of the Customs Act, 1969. The remaining quantity of 20,416 Cartons, measuring 24,188.69 Sq. Mtrs., of China Origin tiles, the Brands, Description as well as article number batch number of which did not substantiate with the produced documents and records were deemed to be smuggled one and brought into the country , without payment of duty/taxes leviable thereon and stored/dumped and mixed with legally imported goods, with the intention to avoid leviable duty and taxes, which were seized on 24.07.2020, under Section 168 of the Customs Act, 1969 being in contravention of the provisions of Section 18 and 178 ibid read with Section 3 (1) & (3) of the Imports & Exports (Control) Act, 1959, punishable under clause (90) of Section 156 (1) and show cause notice was issued to the respondents as as to why seized goods involving duties and taxes to the tune of Rs. 19,377,883/- (approximately) may not be confiscated and as to why the respondents may not be penalized under the afore-said provisions of law.
4. The respondents contested the said show-cause notice, however , the impugn ed order-in-original was passed against the respondents, against which the respondents filed an appeal before the learned Appellate Tribunal, which was allowed and order-in-original was set-aside by observing as under:- "23. Given above mentioned perspective factual and legal circumstances that appellant has duly discharged his burden to possess the subject goods under lawful import through submission of GDs of import, assessment sheets, examination report and Sales Tax record submitted before the respondents. The respondents have failed to establish their allegation of smuggling as such whole contravention report has been based upon conjectures and surmises. The allegation of missing article number/Batch number and marks number are concerned, the same are neither mentioned in the invoices, packing list, sale contracts, EIF form even in the column of mark and numbers or in Bill of Lading (B/L). Therefore, the allegation of missing article numbers, Batch numbers and marks numbers being frivolous and illegal."
5. Along with the afore-referred reasoning, another reason was given by the learned Appellate Tribunal that legal requirement for exercise of powers under Section 163 of the Customs Act, 1969 were not fulfilled by the Search Conducting Of ficer and his team, and the action by the Search Conducting Of ficer was declared as void ab initio .
6. The afore-referred two reasons mentioned in the impugned order are based on determination of facts by the learned Appellate Tribunal and it has specifically been mentioned in the said findings of facts that the respondents had duly discharged their burden to possess the said goods under lawful import and the present applicant- department had failed to establish its allegation of smuggling and had merely based their case on contravention report, which was held by the Appellate Tribunal to be based upon conjectures and surmises. It is pertinent to note here that this Court in its jurisdiction unde r Reference is only to confine itself to the questions of law and does not decide the controversy of fact to interfere in the orders passed by the Appellate Tribunal unless any illegality or jurisdictional defect going to the root of the matter is pointed out in the same, which may have resulted in miscarriage of justice or perverse decision by the Appellate Tribunal, which without deeper appreciation of disputed facts on the face of record appears in the given circumstances of the case as not sustainable, and the view taken by the Appellate Tribunal is not possible under any circumstances. Reliance in this regard is placed on 2019 SCMR 906 (PAKIST AN MATCH INDUSTRIES (PVT .) LTD Versus ASSIST ANT COLLECT OR, SALES TAX AND CENTRAL EXCISE MARDAN), 2017 SCMR 9 (ARMY WELF ARE TRUST (NIZAMPUR CEMENT PROJECT), RAWALPINDI and another versus COLLECT OR OF SALES TAX (NOW/ COMMISSIONER INLAND REVENUE), PESHA WAR) and 2014 SCMR 907 (Messrs F.M.Y. INDUSTRIES LTD versus DEPUTY COMMISSIONER INCOME T AX and another).
7. In the present case, the determination of the question referred to us for decision that whether the Appellate Tribunal has erred in law by declaring lawful exercise of power under Section 163 of the Customs Act, 1969, by Officer of the Seizing Agency as unlawful, even if decided in favour or against the applicant-department, would not have any bearing on findings of facts recorded by the learned Appellate Tribunal that Applicant-department had failed to establish that the goods were smuggled one and the respondents had discharged the burden to possess the subject goods under lawful import documents, which finding had been recorded after due appreciation of record and in these circumstances deciding the said question of law at this stage is mere ly an exercise in futility as final result of the matter would not be changed by deciding the afore-referred question in favour of either of the parties.
8. Moreover , another aspect of the matter is that in the present case, the petitioner by use of phraseology has tried to convert question of fact into a question of law, which is not permissible as it is settled by now that a question of fact could not be converted into one of law merely by use of phraseology as usual to frame question of law and High Court could decline to answer the same if the question referred does not raise substantial legal controversy .
Reliance in this regard is placed on 2003 PTD 1789 (Rafiq Spinning Mills (Pvt.) Limited, Faisalabad versus Customs, Central Excises and Sales T ax Appellate T ribunal, Lahore and another).
9. This Court in its advisory jurisdiction under Reference was not bound to answer each and every question of law proposed for its decision and inter alia could refuse to answer the same if it reached the conclusion that a substantial question of law did not arise from the decision of the Appellate Tribunal or decision of the same would be not necessary in the given circumstances of the case or would have no bearin g on the end result of the case and amounts to an academic discussion only. Reliance in this behalf is placed on 2020 PTD 1657 (SC) = PLD 2020 SC 518 (Commissioner of Inland Revenue, Legal Division, Lahore and others versus Messrs Rafeh Limited) and 2017 SCMR 1006 (Messrs Squibb Pakistan (Pvt.) Limited and another Versus Commissioner of Income T ax and another).
10. For what has been discussed above, we decline to answer the afore-referred question being un-necessary for just decision of the matter and the Custom References filed by the applicant-department being without any substance are decided against the applicant-department and in favour of the respondents, with the result that the Customs References are dismissed.
11. Office shall send a copy of this order under seal of the Court to learned Tribunal as per Section 196(5) of the Customs Act, 1969.