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 27.07.2011 ("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 24.11.2009, a Mazda Mini Truck bearing Registration No.LES- 2924-Lahore loaded with foreign origin black tea was stopped by the customs officials near the.
Motorway Toll Plaza, Peshawar. On demand, allegedly the occupant of the vehicle could not produce any proof of legal import/lawful possession of the goods (blended tea) loaded on the truck. Resultantly, the goods which were a foreign origin black tea was offloaded weighing 118 bags.
In the meanwhile, one Amir Wahab who claimed the ownership of the recovered goods produced copies of GDs No. CRN, IHC, 944948,210309 dated 21.03.2009 along with invoice No.12 dated 23.11.2009 in support of legal purchase of the blended tea. However, the seizing officials on cursory scrutiny of the goods found the same irrelevant; hence notice under Section 17 read with Section 26 of the Customs Act, 1969 was served upon the owner of goods to produce attested copies of the GDs, packing list and invoices etc along with the details of the stock register. The owner of the goods had allegedly failed to produce any document to establish the entire chain of transaction right from import to final supply, therefore, the goods along with the vehicle was seized in terms 'of Section 168 of the Customs Act, 1969 ("The Act") for violation of Sections 2(s), 16, 157 and 178 of the Act read with Section 3(1) of Imports and Exports (Control) Act, 1950.
3. Accordingly, the matter was referred to the Additional Collector-II (adjudication) for further proceedings who issued show-cause notice. One Fakhr-e-Alam Paracha, the Managing Director, Khyber Tea and Food Company ("Company") appeared before the adjudicating officer and submitted his written reply to the show-cause notice.
4. It is inter alia contended in the reply to the show-cause notice that the blended tea was purchased against sale tax invoice No.196 dated 10-11-2009 and the relevant GD was also annexed along with reply to the show-cause notice. It was further contended that 10,000 kg blended tea was purchased by the Company against sales tax invoice No.196 dated 10.11.2009 from M/s. SPATCO'S 215 Panorama Center-I Fatima Jinnah Road, Karachi which was booked through M/s. Munir Goods Transport Company, Karachi for onward transportation to Peshawar vide bilty No.2205 dated 10.11.2009. The entire purchase/invoices were duly entered in the purchased register maintained by the Company in terms of Section 22 of the Sales Tax Act, 1990. The Company had paid required input and output tax. Out of the said blended tea, 8144 kg was sold to Haji Saleem of Ghalla Mandi, Swabi against sales tax invoice No.12 dated 23.11.2009. However, it is the case of the department that the said documents were not relevant and fake.
5. The Adjudicating Officer through impugned order dated 01.04.2010 confiscated the aforesaid blended tea being not satisfied with the explanation and document produced by the Company.
6. The said order was challenged by the Company through Appeal No.78/2011 before the Collector Appeal. The Collector Appeal vide order dated 01.12.2011 also dismissed the appeal.
7. The Company further challenged the same through Appeal No.108/PB/2012 before the Tribunal.
The Tribunal vide order dated 20.11.2012 allowed the said appeal in the following manner: - "23. In view of the foregoing discussions. I am convinced to conclude that the goods seized in this case were lawfully imported on the evidences produced in support of such import, sale and transportation stand vetted and the impugned order-in-original was passed by an authority who was not competent for the same in terms of subsection (1) of section 179 of the Customs Act, 1969 and was also burred by limitation in terms of subsection (3) of section 179 of the Customs Act, 1969. Both the Order-in-Original No.59/2011 dated 17.03.2011 as well as the Order-in-Appeal No.35/2012 dated 31.01.2012 are set aside. It is, therefore, ordered that the seized/confiscated goods may immediately be returned unconditionally to the appellant and in case the same have been auctioned publicly, the entire sales proceeds may be returned/released to the appellant without any delay. So for as the redemption fine imposed on the vehicle is concerned, the same is booked through a registered goods transport company and the goods were also found imported one, no connivance of transporting the smuggled goods is found against the owner of the vehicle, therefore, the redemption fine imposed on the vehicle is also remitted. The appeal stands dispose of accordingly."
8. The Collector Customs through the instant reference has raised good number of questions of law. However, the following are the essential questions for adjudication before this Court; i. Whether the question that the recovered/disputed black tea was duty paid or otherwise? ii. Whether the impugned proceedings by the Adjudicating Officer were concluded within the time frame of 90 days as provided under Section 179(3) of the Customs Act, 1969? iii. Whether the Additional Collector Appeal had the pecuniary jurisdiction to have adjudicating upon the matter? i. Whether the question that the recovered/disputed black tea was duty paid or otherwise?
9. 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 are irrelevant, whereas, the learned tribunal after going through the said invoices have held the same is 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 to answer a reference in terms of Section 196 of the Customs Act is limited only to 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 Collectorate 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)", therefore, is question if answered in negative. ii Whether the Impugned proceedings by the Adjudicating Officer were concluded within the time frame of 90 days as provided under Section 179(3) of the Customs Act, 1969?
10. Moving on to the question of period of limitation in conclusion of the order-in-original. It is evident from record that the show-cause notice was issued to the petitioner on 05.01.2010 vide show-cause notice C.No.Cus/ADRADDC2009/126 dated 05.01.2010 and the judgment was announced on 01.04.2010 as evident from the Order-in-Original No.59/2011. However, the learned Tribunal has taken the said date from the date of its issuance/communication to the parties i.e. 17.03.2011. The record is clear that the said order was passed within 90 days as provided under Section 179(3) of the Customs Act, 1969, therefore, the findings of the Tribunal in this regard are erroneous. This question is thus answered in affirmative. iii. Whether the Additional Collector Adjudication had the pecuniary jurisdiction to have adjudicating upon the matter?
11. Moving on further in respect of the pecuniary jurisdiction of Additional Collector in terms of Section 179 of the Customs Act. In this regard it is held by the Tribunal that since issue relating to evasion of taxes was within the power of Deputy Collector, therefore, Additional Collector who is a superior officer should not have exercised jurisdiction in the matter. In order 'to comprehend the issue, we would like to reproduce the relevant provision which reads as under: - "15[179. Power of adjudication.---1""[(1) Subject to subsection (2), in cases involving confiscation of goods or recovery of duty, and other taxes not levied, short levied or erroneously refunded, imposition of penalty or any other contravention under this Act or the rules made thereunder, the jurisdiction and powers of the officers of customs in terms of amount of duties and other taxes involved, excluding the conveyance, shall be as follows, namely:- i)Collector: no limit ii)Additional collectornot exceeding three million rupees iii)Deputy Collectornot exceeding one million rupees. iv)45 [Omitted] v)Superintendent Not exceeding 46 [one hundred] thousand rupees. vi)Principal AppraiserNot exceeding 46 [one hundred] thousand rupees.
12. In this matter, keeping in view the amount of taxes and duties involved in the matter being less than one million rupees Additional Collector as well as Deputy Collector have concurrent jurisdiction in the matter. However, it is held by the Tribunal that as a matter of course the Deputy Collector should have exercised jurisdiction in the matter. These findings of the Tribunal are not legally tenable because as stated above keeping in view the amount of taxes and duties being less than one million, the Additional Collector as well as Deputy Collector both have jurisdiction in the matter, therefore, this question is answered in positive.
13. Copy of this judgment be sent to the learned Tribunal in terms of Section 196(5) of the Act.