ABDUL JABBAR QURESHI, MEMBER JUDICIAL-I.----By this judgment, I intend to dispose of Customs Appeal bearing No. H-52/2022 filed against Order-In-Original No. 09/2021, dated, 24-07-2021 passed - by the Additional Collector of Customs (Adjudication), Camp at Hyderabad.
2; Brief fact that the it has been reported by the Model Customs Collectorate, Hyderabad that a credible information was received to the effect that on 08.03.2021 during the course of routine checking at Customs- check Post Jacobabad the Customs Staff stopped a Toyota Corolla Axio Car bearing Registration No.BJP-513, coming from Balochistan side the Customs staff signaled to stop the car, and on stoppage of car, driver was inquired about legal import /auction document but he failed to produce any legal import document. Hence the vehicle being suspicious of Non duty paid and smuggled one was taken into custody/detained and brought to Custom Office, Sukkur for further verification. During the detention period, no one appeared as claimant of the vehicle nor produced any legal import/auction documents. Therefore, it proved that the detained vehicle is non duty paid and smuggled one. As such the detention has been converted into seizure and vehicle has been seized under section 168 of the Customs Act, 1969. Notice under section 171 of the Customs Act, 1969, is issued. The Toyota Corolla Axio Car bearing Registration No.BJP-513, has been seized for the violation of provisions of Sections 2(s) and 16 of Customs Act, 1969 read with SRO 566(I)/2005 dated 6/6/2005 and section 3(1) Imports and Exports Control Act, 1950 punishable under clauses (8) and (89) of Section 156(1) of Customs Act, 1969. Now therefore, in terms of Section 180 of the Customs Act, 1969 read with SRO.499(I)/2009 dated 13.06.2009, the owner(s)/claimant(s) of the above-mentioned seized vehicle were hereby called upon to show- cause as to why the seized vehicle should not be confiscated under clauses (8) and (89) of Section 156(1) of Customs Act, 1969 for violation of Sections 2(s) and 16 of Customs Act, 1969 read with SRO 566(1)/2005 dated 6/6/2005 and section 3(1) Imports and Act, 1950. Punishable under clauses (8) and (89) of section 156(1) of Customs Act, 1969.
3. The operative para of Order-in-Original passed by the Collector of Customs (Adjudication), camp @ Hyderabad as are under; "I have examined the case record, considered the verbal arguments of the respondent and the departmental representative. The Seizing Agency has raised discrepancies in the stance taken by the respondent vide its report detailed at para 15 above. No defense has been put forth by the respondent against these discrepancies despite the fact that ample hearing opportunity was provided In the light of Seizing Agency report detailed at para 15 above, it is and clearly proved that the seized vehicle is smuggled one and was brought into the country without payment of duty and taxes and without following prescribed procedure. The respondent has tried to hoodwink Customs by presenting fake and forged documents. In the light of foregoing, charges mentioned in the Show-Cause Notice stand established. Accordingly, I order for outright confiscation of the seized vehicle under clauses (8) and (89) of Section 156(1) of the Customs Act, 1969 for violation of Section 2(s) and Section 16 of the Customs Act, 1969 read with SRO 566(1)/2005 dated 06.06.2005 further read with subsection (1) of Section 3 of Imports and Export (Control) Act, 1950."
4. Being aggrieved and dissatisfied with the impugned Order-in-Original passed by the Additional Collector of Customs (Adjudication), Camp Office at Hyderabad the Appellant filed instant appeal before this Appellate Tribunal. Mr. Rana Shahbaz, Inspector came to represent the department and relied upon the submitted para-wise comments, which are taken on record and appeal grounds are under consideration. That the Respondents Nos. 1, 2 and 3 have detained and seized a lawful vehicle from the Appellant which was purchased from their previous owners after verification/confirmation of status of vehicle from MRA, ACL and CPLC. The Appellant were neither Importer nor first owners, they are subsequent purchasers. All relevant documents for legal position of the subject vehicle were submitted before the seizing agency despite that the subject vehicle was detained and finally seized. As per Section 211 of the Customs Act, 1969 the Importer/Exporter shall maintain the record of its imports/export for a period of (5) five years as well as the subject vehicle had been registered before (5) five years ago on basis of relevant documents. The Appellants further state that the Respondents Nos. 2 and 3 took the custody of vehicle without preparing Mushirnama in presence of Appellant as well as independent witnesses. Notice under section 171 of the Customs Act. 1969 is mandatory which was not served upon the Appellant. The Appellant has relied upon judgment 2014 SCMR 110 of dated: 22.12.2015 passed by the Honourable Apex Court and also 1995 SCMR page 386 with respect to charge of smuggling and checking the legality or illegality of imports and exports. It is further stated that Sections 2(s) and 16 of the Customs Act, 1969 are not applicable of the subject impugned vehicle being registered vehicle. It is further prayed that the detention of above subject vehicle may be declared illegal and without jurisdiction in presence of valid documents and valid registration was outrightly confiscated without valid reasons and legal grounds. As per rules of consistency requested for release of vehicles 'in question to its claimant and declare the act of respondents illegal and without lawful authority and also to declare the act of respondent are in violation to Articles 4, 24 and 25 of the Islamic Republic of Pakistan. It is noticeable from the record of the case that excise and taxation motor registration authority in response to the verification of registration book verified the chassis number, Model and its registration well under the ambit the law. They had issued and supplied the copies of computer printout of motor vehicle tax payments, but according to the seizing agency MRA failed to supply the import / auctioned documents in respect of the said vehicle being impounded and seized by the Respondent Seizing Agency. Under the aforesaid, circumstances when the subject vehicle was registered by the competent authority under the due process of law and statutory provision envisaged under Section 25 of Motor Vehicle Ordinance, 1965 and after fulfillment of prevailing legal formalities including verification of documents the subject vehicle was accordingly registered. Legitimate registration process never being challenged by the seizing agency before any of the competent Court of Law and no action has been initiated till to date against the motor registration authority or against their incumbents. Even otherwise, it is the duty of the seizing agency to comply with the proper provisions of law and proceedings envisaged under Section 26 of the Customs Act, 1969. Admittedly no notice tinder Section 26 of the Customs Act, 1969 has been issued to the Appellant as well as to the relevant concerned quarters including the motor registration .authorities. That the seizing agency have not followed the governing principle of exercising of powers under Section 26 of the Customs Act, 1969. Reliance is placed upon the judgment of the Honourable Supreme Court of Pakistan reported as 1992 SCMR 1898 and also PLD 1992 SC 485 and 1995 PTD (Trib.) 580. That no relevant provisions of Sections 26 and 211 of the Customs Act, 1969 have not 1 been followed by the seizing agency which is against the hall mark judgment of the Honourable Supreme Court of Pakistan in the case of M/s. Imtiaz v. Ghulam Ali reported as PLD 1963 SC 382. That the Appellants have duly discharged the burden of proof under Section 187 of the Customs Act, 1969 by providing all relevant verification documents of the subject vehicle as mentioned in the preceding paras above which have not been taken into consideration by the learned adjudicating authority and the seizing agency.
5. Cross objections were filed on behalf of the department which are taken on record. During the course of hearing the learned DR respectfully prayed that the Order-in-Original No. 09/2021 dated 24.07.2021 passed by the adjudication authority based on real facts may most graciously be upheld and declared lawful and intact and dismiss the appeal of the Appellant.
6. The appellant being aggrieved with the Order-in-Original filed the instant appeal before this Tribunal on grounds that the impugned order is ab-initio illegal, ex-party in nature and with wrong / absurd interpretation of the case, hence, liable to be set aside. The appellant had purchased the subject vehicle from local market after verification of Registration with MRA and same fact was not considered while passing impugned order. The seizing agency has made the seizure on specific information a non-duty paid Toyota Corolla Axio Car bearing Registration No. BIP-513, Chassis No. NZEI41-6116133 Model No. 2008 is running on road. The relation of seller and subsequent purchase (present appellant) has never been denied nor declared forge or fabricated. The present appellant is not importer, he claimed the same on basis receipts from open market and there is no denial nor having any iota of evidence against the appellant. Even having the knowledge, the seizing agency / respondent hopelessly failed to exercise the powers under subsection (1) of Section 165 of the Act in relation to persons were available i present before him. Inspite of powers, the seizing agency has not been able to confirm the authenticity of the aforesaid facts (purchase of vehicle) nor they had summon any one for availing evidence under section 166 of the Customs Act, 1969.
7. Before going to the merits of case, as per office objection in Customs Appeal No.H-52/2022 that subject appeal was filed after delay of 122 days. In this context, the learned counsel for the appellant filed application for condonation of delay which is on record. That the main contention of the appellant was that the impugned Order-in-Original No. 09/2021 dated 24.07.2021 was dispatch to the address of the Appellant namely Mr. Mushtaq Hussain son of Haji Ghulam Sarwar having office Resident of A-43/7-20, Mohallah Nichari Road, near Wapda Office Quetta as reflecting upon the last page of the impugned Order-In- as reflecting through Registered Post To which was never dispatched upon the address of the Appellant. That the Appellant was also' one of the victim of the Covid-19 Pandemic and also had acute back and spinal cord issue till to date and hence, could not avail the fiscal remedy available under the status of the Customs Act, 1969 within time. Seeing the entailing situation the Appellant could not file the subject Appeal well in time within a limitation period of 60 (Sixty) days. That the subject proceedings do not fall under Section 5 of the Limitation Act, where under delay of each and every day has to be explained before the Court. The proceedings before the Appellate Tribunal are governed by Sub-section (5) of Section 194-A of the Customs Act, 1969 whereby the Appellate Tribunal has been vested with wider powers as compared to the authority for condonation of delay in terms of Section 5 of the Limitation Act, 1908, which is applicable to the Honorable High Court and the Honorable Supreme Court of Pakistan. The Appellate Tribunal has vast discretionary powers under the Section 194-A (5) of the Customs Act, 1969 where under the Honorable Tribunal can condone the delay in availing statutory remedy of appeal in cases where grave injustice is being done and the Government might suffer monitory loss it' such condonation is disallowed. The said principle has been upheld in a number of judgments of the superior courts of the country, reliance is placed on the hall mark judgment of Honorable High Court Lahore in Laser Praxis Depilex Clinic v. Customs, Central Excise and Sales Tax Appellate Tribunal reported as 2002 PTD 549 and Messrs Keep and Carry Company v.
Deputy Collector (Adjudication) Sales Tax and others reported as 2002 PTD 608 of the Honorable Lahore High Court. Reliance is also placed on the Orders of the Honorable Appellate Tribunal passed in Customs Appeal No. Q-73/05, Customs Appeal No.H-866/2002 and Customs Appeal No. K-117/2001.
8. The delay in filing of appeal was neither intentional nor deliberate but due to the circumstances which were beyond his control hence delay may kindly be condoned in larger interest of justice. By considering the facts and circumstances, it confirms that the delay in filing appeal was not intentional, hence, relying upon the judgments of Honourable Superior Courts of the Country reported as Lt. General (Reid) Shah Rail Alam v. Lahore Race Club, RJ, 2003 Lab 1660), Khalid Qureshi v. UBL 2001 SCMR 103), East West Steampship v. Queen Land Insurance, PLD 1963 SC 663 Sahibzada Sharruddin v. Town Committee, 1984 CLC 1517, Abida Rashid v. Secretary General of Sindh PLD 1995 Kar. 587. I hereby condone the delay in filing of appeal.
9. Arguments heard record perused. I also prefer to place my observations on Section 157(2) of the Customs Act, 1969, that the phrase "shall also be liable to confiscation" does not mean liable to confiscation automatically. The discretion given to the authority to confiscate the goods or vehicle must be exercised on sound judicial principles. If the words "liable to confiscation" gives a discretion to the confiscating authority to deprive a person of his property, then it follows that this discretion must be exercised upon the principles of natural justice; that is to say, the person sought to be deprived of the property must be given notice to show-cause and they must be provided adequate opportunity of putting forward their point of view and the same must received due consideration. Furthermore, according to one of principles now well accepted, no person should be deprived of his property by way of penalty unless it is clear that he is in some measure responsible for assisting or furthering the commission of the offence committed and no innocent person should be unjustly punished or deprived of his property. Indeed, there was no indication that the owner of the vehicle was also involved in the act of smuggling. If that be so it is difficult to appreciate on what basis reasonable suspicion could arise as to the complicity of the appellant.
There is nothing on record which shows any collusion between the owner of the vehicle and the owner of the smuggled goods, it is not in accordance with law to hold such vehicle as part of the act which is prohibited by the law. Therefore, it is established that the said vehicle is not deliberately part of the act which is forbidden by law. It is imperative to place on record that equity is the soul of the law in dispensation of justice, the Hon'ble Supreme Court of Pakistan in a hallmark judgment namely Imtiaz v. Ghulam Ali reported as PLD 1963 SC 382 laid down the rule that the proper place of procedure in any system of administration of justice is to help and not to thwart right of the people.
10. The vehicle in question was purchased by the present owner after due verification set forth under section 25 of Motor Vehicle Ordinance, 1965 (West Pakistan Ordinance XIX of 1965). The registration and transfer of the vehicle by the Competent Authority has significant impact and deems process have been done cautiously after compliance of statutory requirements. The Legitimate registration process has never been disputed / challenged by the seizing agency before any of the competent court of law and no action has been initiated to date against the Motor Registration and Customs Officials for alleged preparation of so called fake documents / certificates, therefore, the Honorable Tribunal is prayed to pass an early order for the release of the vehicle to meet the values of natural justice as the vehicle is of over 15 years old Model 2008 and duly registered with Excise and Taxation Department cannot be confiscated under law. As per section 211 of the Customs Act, 1969, the importer or exporter shall maintain record of its imports / exports for a period of five years. Sections 2(s), 9, 10 and 177 of the Customs Act, 1969 which express the definition of word smuggle and restriction on possession of goods in certain areas. The sub- ordinates of respondent No.2 are not empower to intercept or detain the vehicle plying as public carrier within the territory of Pakistan with the exception of area expressed in Section 177 of the Customs Act, 1969. Section 26 of the Customs Act, 1969 says it is binding upon the seizing agency to comply with the proper provision of law and proceedings envisaged under section 26 of the act, admittedly no notice under section 26 was served upon the relevant quarters Including the Motor Registration Authorities.
11. As regards to burden of proof under Section 187 of the Customs Act, 1969, cast an evidentiary burden subject to creation of a prima facie case by accused and the legal or persuasive burden always rested on the prosecution/ department when an accused had to rebut the presumption under Section 156(2) or 187 of the Customs Act, 1969 the Standard of proof doing so was that of preponderance of probabilities. If accused was able to raise to probable defense which would create doubt about the existence of legally enforceable debit or liability the prosecution could fail Appellant, who claimed to be the owner of the vehicle had succeeded in making out a prima facie case and it was held that preponderance of probability was also in favour of the appellant Existence of factum of smuggled nature of impugned vehicle was doubtful burden of proof under Section 187 and Section 156(2) of the Customs Act, 1969 stood shifted upon the prosecution department to establish the case Department having failed to discharge the legal or persuasive burden which lay heavily on it, benefit of doubt was extended to the appellant--Impugned Order- in-Original was set aside and unconditional release of confiscated vehicle was ordered to be given to its lawful owner.
12. The department / seizing agency never tried to controvert the stance of the appellant no statement from any witness about the alleged seizure was recorded or produced. The genuineness of supplied documents were not verified before passing impugned order. Under such circumstances, the presumptions could arises that the goods in question were brought into the country unless contrary as shown, even providing the relevant purchase documents, the seizing agency never made any attempt to verify the same or to controvert the same as forged or illegal and as to why these documentary evidence was not relied upon. The Supreme Court of Pakistan in case reported PLD 1962 SC 440 observed that wherein receipts of purchase and payment of money produced by the person from whom smuggled items were recovered was accredited with truth and the Court held that he had discharge the burden of proof mandated under the law. On the grounds of such observation the Honorable Supreme Court while deciding the Customs Appeal No.68/2002 observed that the action required on reasonable belief on the part of the persons seizing the goods that act to defraud the government. If the person purchased goods from an ordinary market then in the absence of any suspicious circumstances or some defined facts leading to that inference the customs officer is not entitled to a reasonable belief that the government has been defrauded of the duty payable on goods. The ordinary method of import of goods from outside is that they come through the customs barriers and duty payable is in fact paid that presumptions, presumes, therefore, are accepted of any goods which may be sold in open market in the absence of any indication to the contrary would be that the duty has been paid on them.
13. It is also important to observe that the subject vehicle was admittedly intercepted well within the city of Karachi. Section 177 of the Customs Act, 1969 and Notification No SRO 118(1)/1983 dated 02.02.1983 has notified the area of 5 miles adjacent to the frontier of Pakistan with India and Iran be area to which the provision of Section 177 shall apply. There is no specific Notification has been issued for other borders. As such, the allegation allegedly attributed collectively against the appellant does not have any warrant to be implemented under the circumstances noted above.
14. As per record, it was alleged that the Toyota Corolla Axio Car bearing Registration No. BJP-513, Chassis No. NZE141-6116133 Model No. 2008 has been brought into country without payment of duty and taxes and plying with dummy registration number / plate of another vehicle. The other side's contention is that the appellant is subsequent purchaser of vehicle from the open market after verification of its legality and he is not importer of subject vehicle. The impugned vehicle is approximately more than 15 years old. On securing or maintenance of import record of the vehicles besides other issues related to vehicles, the Honourable Lahore High Court, Lahore decided issues of tempering and maintenance of record in C.P. No.381 of 2013 filed against the order of Tribunal by the department, relevant portion of order about maintenance of import record is that "that import record cannot be obtained after lapse of period of more than 10 years". The subject order was challenged through C.P. No.1802-L/2020 before the Honourable Supreme Court of Pakistan, the appeal of department was dismissed and order of Lahore High Court, Lahore was restored thus issue attained its finality.
15. No statement from any witness about the alleged seize e was recorded or produced by the seizing agency. The genuineness of documents were not verified before passing impugned order.
The Honourable Supreme Court of Pakistan observed in a reported PLD 1962 (SC 440) that purchase / payment receipts are produced by a person from whom smuggled items were recovered was accredited with truth and Court held that he had discharge the burden of proof mandated under the law. It is admitted fact that the subject vehicle has been intercepted well within the city of Karachi. The SRO 118(1)/1983 dated 02.02.1983 has notified the area of 5 miles adjacent to the frontier of Pakistan with India and Iran be area to which the provision of Section 177 shall apply. There is no specific Notification has been issued for other borders. As such, the allegation allegedly attributed against the appellant does not have any warrant to be implemented under the circumstances noted a above. The application of Section 156(89) is not relevant as impugned vehicle is not smuggled by any standard as the subject goods are freely importable and there is no notification to establish that the subject goods Falls and negative list not importable specially when anything contra has been established or produced by the seizing agency in support of their alleged seizure nor they controverted the documentary evidence pro., iced by the appellant. By merely going any order to purchase smuggled goods it could not be said that the person was in any manner dealing with the smuggled goods. It is a case of discrimination in terms of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan. The Honorable Supreme Court of Pakistan vide its judgment reported as 2005 SCMR 492 laid down a principle that "facility allowed to someone and denied to otters is discrimination and this discriminatory attitude of the adjudicating officer and government functionaries was depreciated in various judgments".
The charges attributed through show-cause notice. the Section 2(s) clearly depicts that smuggling means bringing into or taking out of Pakistan in breach of any prohibition or restriction or I evading payment of customs duties and taxes. There is no violation or Sections 2(s) and 16 of the Customs Act, 1969.
16. Apart from the above discussions, that the phrase "shall also be liable to confiscation" as provided in Section 157(2) of the Customs Act, 1969, does not mean that vehicle should be confiscated automatically i.e. this discretion must be exercised upon the principles of natural justice. According to one of principles now well-accepted, no person should be deprived of his property by way of penalty unless it is clear that he is in some measure responsible for assisting or furthering the commission of the offence committed and no innocent person should be unjustly punished or deprived of his property. There is nothing on record to prove complicity or vicarious liability against the owners of the vehicles. PLD 1963 SC 382 Imtiaz v. Ghulam Ali SC, the August Supreme Court held that equity is the soul of the law in dispensation of justice, any system of administration of justice is to help and not to thwart right of the people.
17. In the view of above discussions on facts and legal issues and by getting support from the judgments passed on the issues as related to this case by the apex Courts referred herein above. I have also deeply gone through the charging Sections of the Act, referred judgments, circumstances of case and seizure of vehicle in the middle of city after long span of time as per age of vehicle. 1 am fully convinced that there is no substance in the arguments of respondent about outright confiscation of vehicle which carries no weight in the eyes of law.
18. The department is further directed to release the impugned vehicle unconditionally to the Appellant in the light of verification letters dated 02.09.2021, 17.11.2021 addressed from the Deputy Collector of Customs Appraisement (West) Group-VII Customs House, Karachi to the Assistant Collector of Customs Preventive Sukkur Amnesty Scheme 2013 in file No. 4954/2013-VI which is taken on record and also in the light of the judgment of the Honourable High Court of Sindh at Karachi in Special Customs Reference No. 281 of 2007 reported as 2008 PTD 525 title as Collector of Customs Preventive Karachi v. Ghulam Muhammad and also the hall mark judgment of the Honourable High Court of Sindh at Karachi reported as 2021 PTD 1683 Special Customs Reference Application No. 110 of 2014 along with connected references title as The Additional Director, Directorate General of Intelligence and Investigation-FBR, Regional Office, Karachi and others v.
Imran and another. Hence, I hereby set aside the impugned Order-in-Original No.09/2021, dated 24-7-2021 (impugned therein) and vacate the subject show-cause notice dated 3-5-2021 mu allow the appeal of appellant with no order as to cost.
19. Judgment passed and announced accordingly.
20. This order consists of (11) pages and each page bear my initials and office seal.