SHAKIL AHMED ABBASI, MEMBER JUDICIAL-III. By this order, I intend to dispose of Customs Appeal No.H-7255/2021 dated 12.06.2021 directed against Order-in-Original No.58/2021 dated 12.03.2021 passed by the learned 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 on 04.01.2021 the Customs staff intercepted a Container/Trailer bearing Registration No. C-2163 bound from Mangora to Karachi on 04.01.2021 on National High Way, Near Ranipur Toll Plaza. The checking of the vehicle resulted into recovery of foreign origin non duty paid Cloth and Talcum Powder. On inquiry from the driver namely Zahid Hussain son of Bagh Zamaeen, about the lawful possession of the recovered goods, he produced Bilty Nos.5112/03 dated 26.12.2021, 5126/02 dated 29.12.2021 and 5103/10 Dated 24.12.2020.
Therefore, the recovered foreign origin goods were detained for providing legal import documents.
The statement of driver was recorded and vehicle loaded with local misc. goods was allowed to go to its destination. Moreover, during the detention period the owner(s) failed to produce lawful import documents in support of detained goods. Therefore the detention was converted into seizure. Notice under Section 171 of Customs Act, 1969 was issued. The smuggled goods have been seized under Section 168 of the Customs Act, 1969 for the violation of the provision of Sections 2(s) and 16 of Customs Act, 1969 read with SRO 566(I)/2005 dated: 6/6/2005 further read with Section 3(1) Imports and Exports of Control Act, 1950 punishable under clauses (8) and (89) of Section 156(1) of Customs Act, 1969.
3. The case was sent for adjudication and show-cause notice was issued accordingly. The learned Collector of Customs (Adjudication) Quetta Camp Office at Hyderabad accordingly issued an Order-in-Original No.58/2021 dated 12.03.2021 as under:- "I have examined the case record, considered the written arguments of the respondent and the departmental representative. The respondent(s) of Billy Nos. 5103/10, Billy Nos. 5112/03 and 5126/2 mentioned at Para 12 Supra of this order are concerned, the respondent of the seized goods has failed to produce any legal import documents showing lawful possession and legal import after payment of leviable duty taxes. Therefore, I do not find any reason to disagree with the contention of the Seizing Agency that the seized goods were brought into the country through an unauthorized route without payment of duty and taxes. Consequently, the seized goods mentioned at Para 12 supra of this order are Confiscated Outright in terms of clauses (8) and (89) of Section 156(1) of the Customs Act, 1969 for violation of Sections 2(s) and 16 of the Customs Act, 1969 read with SRO 566(I)/2005 dated 06.06.2005."
4. Being aggrieved and dissatisfied with the aforesaid impugned Order-in-Original No.58/2021 passed by the adjudicating authority, the appellant has filed the instant appeal before this Tribunal and has assailed the impugned order inter alia on the grounds that the confiscated goods are lawfully imported by the appellant and the goods are to be treated duly duty paid. The confiscated cloth is not foreign origin and seizing agency has not been able to provide any specific evidence regarding their allegation.
5. Respondent Collectorate filed parawise comments on grounds of memo of appeal which are reproduced as under:-
1. Denied. The Order-in-Original No.58/2021 dated 12.03.2021 is quite speaking and is in accordance with provisions of the Customs Act, 1969 and Rules made thereunder. Hence it is lawful and intact.
2&3. It is incorrect that all citizen are equal before the law and the decision is to be done in accordance with provisions of the Customs Act, 1969 by the adjudication authority. The seized goods were foreign origin and may be brought in the country either in legal way or otherwise.
Whereas, the occupant of goods failed to justify the goods in legal, then there is every possibility to say that the goods were brought in country illegally and through un-authorized routes, which fall in the definition of smuggling under section 2(s) of the Customs Act, 1969.
4&5. Denied. The seizing agency seized goods after giving full opportunity to the claimant to produce the import documents but the claimant/appellant entirely failed to discharge his liability of producing the required customs duty paid documents, therefore, the seizure of vehicle is within the legal frame work of law in accordance with provisions of Customs Act, 1969 and rules made thereunder. The claimant of seized goods i.e. Cloth produced an application along with Membership Certificate of Swat Chamber of Commerce and Industry in which Chamber of Commerce certified that M/s. Astanbol Silk Mills existence of Mill and claimant has failed to produce customs import/auction documents and provide no evidence of production. The claimant the seized cloth submitted an application in which he claimed the cloth vide Bitty Nos.5112/03 and 5126/02, whereas Bilty No.5112/03 showing consignor as "Astanbol Mills Swat" and another Billy No.5126/02 showing consignor as "Afan Mills Swat" that itself contradict his claim not established.
Therefore, the objection of the claimant is not tangible.
The seizing agency is a Federal Government Department having good reputation and working under the well reputed officers / officials, therefore the allegation levelled by the claimant / appellant has not base and liable to rejection. As submitted above the seizing agency has seized the vehicle not having legal import / customs duty paid documents and the registration of the vehicle does not restricted the customs department to seize the vehicle brought into the country without payment of customs duty taxes, therefore the seized goods having no proof of payment of customs duty are not to be treated as legal one and the all such vehicles having no proof of such legal genuine import documents are liable to confiscation.
6. Denied. It is the responsibility of the claimant of goods to prove that the seized goods are legally imported / purchased and the burden of proof falls on the shoulders of the claimant under section 187 of the Customs Act, 1969, to prove its legal import. As submitted above, the claimant has entirely failed to prove chain between the purchaser and claimant. Further, the seizing agency has provided ample proof of vehicle being non duty paid.
7. Denied. Same as stated above Para's. The seizing agency seized good are of foreign origin and claimant also failed to produce Sales Tax Invoice, Production License of Manufacturing from Ministry of Industries and Commerce approval. The appellant failed to produce legal import documents or otherwise. Hence, the customs department is bound to seize such goods having no genuine legal import documents or otherwise.
Therefore, the references quoted by the advocate of claimant in the instant case are quite irrelevant just to give illegal protection and to usurp government revenue and to belittle the intellect of the Honourable Appellate Tribunal.
6. I have heard the counsel for the appellant at length and gone through the record of the case and also parawise comments put forth by the respondent Collectorate. During the course of hearing of the instant appeal, it was felt appropriate by the Bench on specific request of the counsel of the appellant to independently verify the factual position of goods whether the impugned cloth is locally manufactured or not? Therefore, a local commission was appointed namely, Mr. Faisal Saleem, Assistant Private Secretary of this Tribunal Islamabad Bench, who visited M/s. Istanbul Silk Mills Swat and inspected and compare the samples of the seized consignment and reported as under:- "In this regard on 26.02.2023 I have visited the manufacturing unit i.e. Istanbul Silk Mills, Angro Dheri Swat, K.P.K. I visited the manufacturing unit and it is found that manufacturing unit have 56 operational looms and there is 21 employees working at manufacturing unit.
It is worth mentioning here that manufacturing unit manufactured different types of silk cloth and i saw with naked eyes and as per my belief the subject cloth which is attached with the Hon'ble Bench Order dated 16.02.2023 is manufactured locally at the manufacturing unit and also take sample of the cloth (attached with instant report) which is manufacture at that time in above mentioned Mills/manufactured unit."
7. In view of above report, it is obvious that the impugned cloth is of locally manufactured. The learned counsel representing the claimant / owner is adamant that the impugned cloth seized by the respondent Collectorate is locally manufactured by the appellants. In support of his contention he has furnished photographs of the producing manufacturer and certificate of Chamber of Commerce. On the other hand, the Departmental Representative vociferously claimed that the impugned cloth is of foreign origin which has been smuggled into the country on which no duty and taxes have been paid and, therefore, the said cloth was rightly confiscated by the Adjudication Officer under clause (8) and (89) of Section 156(1) of Customs Act, 1969.
8. In view of above position taken up by the both parties, the Bench is left with no option but to decide the case in light of facts presented before it. Notwithstanding the above divergence of opinion, there is broad agreement on both sides as also verified by the local commission that the seized cloth is locally manufactured and is not of foreign origin. The appellant has furnished sufficient evidences regarding his contention that the seized cloth is locally manufactured, further strengthened by the report of local commission and the respondent has failed to prove the allegation of foreign origin/smuggled cloth as levelled in the Show-Cause Notice and impugned order.
9. Resultantly, the instant appeal is allowed and impugned Order-in-Original No.58/2021 dated 12.03.2021 is set aside with no order as to costs. The respondent Collectorate is, therefore, directed to release the impugned cloth to the appellant forthwith.
10. This judgment consists of five (05) pages and each page bears my initials and office seal.