SHAKEEL AHM ED ABBASI, M EM BER JUDICIAL-III.---By this judgment, I intend to dispose of Customs Appeal No.H-519/2018 dated 15.05.2018 filed against Order-in-Original No.63/2018 dated 16.03.2018 passed by the learned Additional Collector of Customs (Adjudication), Quetta Camp Office at Hyderabad.
2. Brief facts of the case are that a credible information was received to the effect that foreign origin smuggled HSD would be transported from Hub-Balochistan to Interior Sindh, the ASO, Staff MCC, Hyderabad intercepted an Oil Tanker bearing registration No.TUA-579 loaded with diesel on Super High Way at Toll Plaza Jamshoro at around 10.00 A.M on 14.12.2017. The driver of the vehicle produced a "Delivery Advice" bearing No.86129313 dated 14.12.2017 prima facie, issued by M/s. Byco Petroleum Pakistan Limited showing the product to be 30,000 litres of High Speed Diesel Oil (HSD) destined to Zohaib Filling Station, PO Box Road Dosdali, Shandad Kot City, District Shandadkot. The oil tanker loaded with suspected smuggled HSD was taken into lawful custody and the vehicle was brought to the Custom House, Hyderabad along with HSD loaded therein for further necessary action. To ascertain the genuineness of "Delivery Advice" bearing No.86129313 dated 14.12.2017 purportedly issued by M/s. Byoo Petroleum Pakistan Limited, Mr. Rana Shahbaz Inspector was deputed to visit the establishment of M/s Byco Petroleum Limited vide letter C.No.11-Cus- Det/Seiz/ASO/Hyd/17-18/2086 dated 14.12.2017 and get verification of the said delivery advice from the record of above referred supply, under section 26 of the Customs Act, 1969. M/s Byco Petroleum Pakistan Limited denied the ownership of the above referred Delivery Advice vide letter dated 14.12.2017, which is re-produced below:- "At the outset, it is clarified that Delivery. Advice NO.86129313 never issued for sale of products to any Customer. However. document presented by Tank Lorry No.TUA-579 is a fake document as it was not issued by Byco to the said TUA-579. ii. We hereby confirm that the alleged Delivery Note No.86129313 dated 14.12.2017 for supply of product to the above referred Customer is a fake document at Byco never issued any such document for the said Customer or to the above referred Tank Lorry. It appears, the driver or owner of the said Tank Lorry, No TUA-579 prepared a fake and illegal delivery advice by using format of Byco: iii.- In view of the above we request your kind self, to take appropriate legal action against the tank lorry No. TUA-579 and its driver/owner, including but not limited to for using fake documents, counterfeiting documents, illegal possession and transportation of petroleum products.
3. It has been further reported by Deputy Collector that in view of above, it was established that the detained product is smuggled one and has been brought into the country through illegal channel.
Therefore, 30,000 litres of HSD along with Oil Tanker bearing Registration No.TUA-579 used for transportation of smuggled HSD has been seized and driver namely Muhammad Raheem son of Jumma Khan and Helper Abdul Rasheed son of Umar Hameed were arrested after serving notice under section 171 of the Customs Act, 1969 upon the above named driver and helper with a copy to registered owner of Oil Tanker/goods as per registration book and a copy thereof has also been displayed on the Notice Board of Custom House Hyderabad under section 215(b) of the Customs Act,1969 for violation of sections 2(s) 16 and 187 of the Customs Act,1969 read with SRO 566(1)/2005 dated 06.06.2005 further read with section 3(1) of Imports and Exports (Control) Act, 1950 punishable under clauses (8) & (89) of section 156(I) and section 157(2) of the Customs Act, 1969 read with SRO 499(1)/2099 dated 13.06.2009.
4. Adjudicating proceedings culminated into passing of Order-in-Original No.63/2018 dated 16.03.2018 passed by learned Additional Collector of Customs (Adjudication) Quetta Camp Office at Hyderabad as under:- "I have gone through record of the case and considered the written as well as verbal submissions of the department Consequently I do conclude as under:- i. Neither any one appeared from the owner / claimant of seized 30,000 liters of HSD nor any written reply was received rebutting the allegations as contained in the Show-Cause Notice. Being conscious of the universally: established legal principle of "audi alterm partem" i.e. no one shall be condemned unheard, this office tried its best to provide the respondent an opportunity of being heard as the Show-Cause Notice and the hearing notices were issued. However no one from respondents attended the hearing nor any documents were produced to establish that seized HSD has been lawfully imported in the country. Therefore, I do not find any reason to disagree with the contention the Seizing Agency that the seized HSD was brought into country in violation of above mentioned provisions of law. Consequently the seized HSD is confiscated outright under clauses (8) & (89) of section 156(1) of the Customs Act, 1969 read with SRO 499(1)/2009 for violation sections 2(s) and 16 of the Customs. Act, 1969 read with SRO 566(1)/2005 dated 06.06.2005 further read with section 3(1) Imports and Exports (Control) Act, 1950." ii. Regarding vehicle bearing Registration No.TUA-579 the same has conclusively been used in carrying smuggled HSD; therefore the same is also ordered to be confiscated outright in terms of section 157(2) of the Customs Act, 1969."
5. Appellant being aggrieved with the aforesaid impugned order passed by Adjudication Officer filed the instant appeal before this Tribunal and has assailed the impugned order inter alia on the following grounds:--
1. "The impugned order is opposed to facts law and justice.
2. The appellant is only being a public transporter and did not constitute an offence of smuggling.
3. That the 2(s) required direct evidence which is absent in this case.
4. The adjudicating authority did not consider the documents and appearance of the claimant/attorney, however, the adjudicating authority already ordered to release the vehicle by given option under section 181 in various identical nature cases, which is statutory right under SRO 499.
5. The adjudicating authority passed discriminatory order, which is clear violation of the fundamental right as given in the constitution of Islamic Republic of Pakistan, 1973.
6. In view of foregoing facts and grounds, it is evident that the appellant did not contravened / violated any provision of the Customs Act, 1969 and Import and Export (Control) Act, 1950.
Therefore, the impugned order cannot sustain and liable to be set aside."
6. Learned counsel for the appellant filed an application under section 194-C subsection (8) of the Customs Act, 1969. The contents of application are reproduced as under:-
1. That the appellant filed an Appeal No.H-519/2018 on 15.05.2018 against the Order-in-Original dated 16.03.2018 copy of which obtained by the appellant on 26.03.2018. Filing the appeal already intimated to the respondent.
2. That the appeal admitted an& after that department filed comment on appeal, DR of the respondent regularly attended the hearings before this Hon'ble Tribunal.
3. Despite of this on 12-9-2018 the advocate received call from his clerk that the oil tanker bearing involved in appeal bearing Regd. No.TUA-579 today (12.03.2018) added by SWH in the list of Auction by the orders of Deputy Collector.
4. However, the advocate already checked the auction list on the website of FBR prior to 12.03.2018 and same was not in the list of FBR website (copy enclosed).
5. Nor the appellant and neither the advocate received any mandatory notice for the disposal of goods/vehicle from State Ware House.
6. The advocate was at Karachi after receiving the call from Hyderabad, he rushed to Hyderabad Custom House and reached in that auction.
7. The Deputy Collector (Auction/SWH). Superintendent and other staff of SWH, auctioneer were conducting and many bidders were there in that auction.
8. The advocate firstly asked about notice from Deputy Collector and staff of SWH, but they were failed to produce the same to the advocate before the gathering.
9. Than the Deputy Collector instructed the auctioneer to announce the cancellation of auction of the appellant's oil tanker.
10. That the auctioneer publicly announced that no auction be held for oil tanker TUA-579 due to the appeal pend before Appellate Tribunal.
11. But on next date the Deputy Collector (Auction/SWH) mischiefly and illegally auctioned the same oil tanker in his chamber.
12. The Deputy Collector and staff of SWH within one day completed the illegal auction and delivered the oil tanker on the same day i.e. 14.03.2019 to the bidder.
13. The advocate met with the Collector told him this illegality, the Collector called the Deputy Collector and directed him to bring that oil tanker back and refund the amount to bidder.
14. But the Deputy Collector nor obeyed his superior's direction and neither brought the oil tanker back.
15. Than this situation informed to this Hon'ble Tribunal during hearing and this Hon'ble Tribunal given the direction to the DR present during hearing that the all the auction proceedings detail be produced before the Tribunal.
16. The list produced by the respondent before the Hon'ble Tribunal is false/fabricated which can be verified from website of FBR. This time the respondent criminally mislead this Hon'ble Tribunal.
7. Respondent filed parawise comments on above grounds of contempt application which are reproduced as under:-
1. Denied. The appellant was not claimant of the vehicle at the Adjudication level and Adjudicating authority decided the case ex-party on merits.
2. The Para needs no comments.
3. Denied. The Appellant filed Appeal before the Hon'ble Tribunal but no stay was granted by the Hon'ble Tribunal or any other judicial fora, therefore, department was justified in auctioning the subject vehicle in order to secure government revenue involved in the case. The department before auctioning the vehicle issued Notice under Section 201 of the Customs Act, 1969, to the legal owner of the vehicle Mr. Abdul Sattar son of Muhammad Ilyas as the vehicle is registered with Motor Registration Authority in his name.
4. The competent authority i.e. Collector has power to include or 'exclude any item from the list of auction as per circumstances and legality of the auction of any such goods.
5. Denied. The notice was issued to the legal owner of the vehicle Mr. Abdul Sattar son of Muhammad Ilyas as per record of Motor Registration Authority.
6. The para needs no comments.
7. The para needs no comments.
8. The para needs no comments.
9. Denied. The statement of Advocate of the Appellant is not correct as no such announcement for cancellation of auction of subject vehicle was made.
10. Denied. No such announcement was made by the auctioneer; therefore, contention of the Appellant is not correct.
11. Denied. The auction proceeding were conducted only one day i.e. 12.09.2018 and no auction proceedings took place on next day, therefore, contention of the Appellant is incorrect and misleading.
12. Denied. Since, highest bidder of the vehicle deposited duty and taxes involved and completed all the legal formalities, therefore, vehicle was delivered to him.
13. The para needs no comments.
14. Denied. The auction of the vehicle was legal and all the legal formalities was fulfilled, therefore, there was no question of calling back the oil tanker.
15. Denied. Department in compliance of the order passed by the Hon'ble Tribunal submitted all the required information and record to the Hon'ble Bench.
16. Denied. The list submitted in the Hon'ble Tribunal was genuine as at Serial No. 18 of the said list contain the subject vehicle.
8. Arguments heard and record perused. It has been confirmed by the DR that the Oil Tanker bearing Regd. No.TUA-579 has already been auctioned. Counsel for the appellant argued vehemently that during the pendency of the appeal, the respondent department had auctioned the seized/confiscated vehicle. It is surprising to observe here that as per auction list dated 12.09.2018 provided by the appellant the said vehicle was not included in the said list. Thus, it clearly shows mala tide on their part. The auction proceedings were not conducted legally and properly by the respondents as the appellant nor owner of vehicle was served upon any notice for such proceedings as required by Rule 58 of the Custom Rules, 2001 read with section 201 of Customs Act, 1969. He has cited Supreme Court Ruling cited as 2005 PTD (Trib.) 2262 wherein guidelines in support of above contentions have been given. However, since the auction has already taken place the only remedy available to the appellant is to reimburse of Sale Proceeds and accordingly he has requested for it.
9. In view of above legal and factual position, the respondents are directed to re-imburse the Sale Proceeds to the appellant immediately after deduction of 20% redemption fine under Section 181 of the Customs Act, 1969 of the Customs Value of the vehicle as already been assessed in Reserved Price for auction by the respondent department and the remaining balance amount of Sale Proceeds be refunded to the appellant immediately.
10. The appeal stands dispose of in above terms with no order as costs.
11. This judgment consists of five (05) pages and each pages bear my initials as well as official seal with full signature on the last page.