SHAKIL AHMED ABBASI, MEMBER JUDICIAL-III. By this order, I intend to dispose of abovementioned Customs Appeal filed Order-in-Original No.77/2023 dated 11.09.2023 passed by the learned Collector of Customs (Adjudication), Quetta Camp Office at Hyderabad.
2. Brief facts of the case are that during the course of routine checking at Shikarpur-Jacobabad road, the customs team saw a Suzuki Cion Car bearing Registration No.BMK-282, and was signaled to stop, but the driver ignored the signal and accelerated the car, which was chased by the customs team on the Government vehicle bearing Registration No.GP-5832. The driver entered in the nearby village Humayun, parked the car on the road side and escaped in the crowded area.
The car was taken into the custody. A preliminary search was conducted. During the search of car recovered Indian Futkha Diff; Brands 22 bags. Therefore the recovered foreign origin banned goods were taken into custody and brought to the Customs Office, Sukkur. The smuggled goods along with vehicle have been seized under section 168 of the Customs Act, 1969. Notice under section 171 of Customs Act, 1969 was issued to the unknown persons and a copy thereof was pasted on the Notice Board of Customs Office, Sukkur under section 215(b) of Customs Act, 1969 for violation of section's 2(s) and 16 of Customs Act, 1969 read with SRO 566(I)/2005 dated 6/6/2005 and further read with SRO 499(I)/2009 dated 13.06.2009 and section 3(1) of Imports and Exports (Control) Act, 1950, punishable under clauses (8) and (89) of sections 156(1) and 157 (1) and (2) of Customs Act, 1969.
3. Adjudicating proceedings were culminated into passing of Order-in-Original No.77/2023 dated 11.09.2023 passed by learned Collector of Customs (Adjudication), Quetta Camp Office at Hyderabad as under:- "16. I have examined the case record, considered the verbal arguments of the seizing agency.
Neither any one appeared to claim the seized goods mentioned at para 12 supra of this order nor any written reply was received rebutting the allegations as contained in the show-cause notice.
Being conscious of the universally established legal principal of "Audi Alteram Partem" i.e. no one shall be condemned unheard. This office tried its best to provide the respondent sufficient opportunity of hearing through show-cause notice and the hearing notices. Despite that the respondents failed to appear either in person or through authorized representative and did not furnish any written reply to the show-cause notice. 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 is confiscated outright in terms of clauses (8) & (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 S.R.O. 566(4)/2005 dated 06.06.2005.
17. As far as the seized vehicle is concerned, the same has been used exclusively for carriage removal of offending/contraband goods. Therefore, it is confiscated under section 157(2) of the Customs Act, 1969. However, nothing has been placed on record by the sexing agency to the effect that the seized vehicle has been found carrying of smuggled goods in false cavities or being used exclusively or wholly for transportation of offending goods under clause (8) of section 2 of Customs Act, 1969. Consequently, the seized vehicle is confiscated outright in terms of 157(2) of Customs Act, 1969. In view of the request of respondent/claimant of vehicle that it has bona fide status, an option under section 181 of the Customs read with section 157(2) of the Customs Act, 1969 and read with S.R.O.499(I)/2009 dated 13.06.2009 is given to the lawful claimant/owner of the seized vehicle to redeem the same against payment of redemption fine equivalent to 20% of the Customs value subject to condition that the vehicle is already lawfully registered in the country with the relevant Motor Registration Authority and has not been repeatedly used in terms of Board's letter No.10(17)L&P105 dated 26.06:2006 and to verify, that it does not attract clause, (b) of preamble to SRO 499(I)/2009 dated 13.06.2009. The seizing agency is also directed to get the vehicle lab tested
(FSL) to ascertain as to whether its chassis number/frame is genuine or otherwise in terms of Board's letter No.1(12)E&C/2019 dated 18.11.2019. It may also be ascertained before release that the vehicle is not required in any other court of law. In case of adverse findings, necessary action may be taken accordingly. A personal penalty of Rs. 50,000/- (Fifty Thousand Only) is alto imposed on lawful claimant/owner."
4. Appellant Collectorate being aggrieved with the aforesaid impugned order passed by the Adjudication Officer filed the instant appeal before this Tribunal and has assailed the impugned order inter alia on the following grounds:- A. That the above impugned Order No.77/2023 dated 11.09.2023 is opposed to facts, law and against the spirit of equitable natural justice, as such the Collector Customs (Adjudication) has miserably failed to consider that vehicle owner is vicariously responsible and his plea for innocence cannot be entertained, as held in the reported judgment of Tribunal Lahore (Syed Tal Muhammad) v.
Collector-Appeals PTCL 1998 (sic) 272 (Tribunal Lahore)
B. The Collector Customs (Adjudication) also did not consider the logical contention of seizing Agency that the claimant of seized Suzuki Cion Car bearing Registration No.BMK-282 was involved in smuggling of Indian Gutkha, and failed to discharge his burden of proof.
C. That the Collector of Customs (Adjudication) while passing the impugned order has overlooked and thus seriously erred in law in terms of section 157(1) and (2) of the Customs Act, 1969, that if any person without lawful excuse carrying/transporting the smuggled goods, which has duly been proved in the subject case vide Quasi judicial proceedings as evident from the confiscation order of the Indian Products under impugned Order-in-Original, however, the release of Suzuki Cion Car on the redemption fine is against the spirit and principle of law.
D. That the Collector of Customs (Adjudication) has not considered the legal position enunciated' under the spirit of section 157(2) and section 181 of the Customs Act, 1969 and SRO 499(I)/2009 dated 13-06-2009, at the time of releasing the above Suzuki Cion Car on payment of redemption fine. Thus the impugned order is void ab-initio, and without plausible justification.
E. That the carrier had a clear knowledge that he was involved in smuggling of Indian Gutkha, a notified item under SRO 566 (I) of 2005 dated 06-06-2005 read with Section 2(s) of the Customs Act, 1969. Therefore, keeping in view the clear mens rea of transporter, no option is permissible in law to release the Suzuki Cion Car on payment of when the smuggled case property has been confiscated outrightly in terms of clauses (8) & (89) of section 156 (1) read with sections 2(s) and 16 of the Customs Act, 1969. As such it has been established beyond any doubt, before the adjudicating authority that the above vehicle was involved in the act of smuggling of notified item, is liable to be confiscated outrightly. As held in the reported judgment (AIR 1956 COL 553)
5. Learned counsel appeared on behalf of respondent No.2 and filed parawise comments on grounds of appeal which are reproduced as under:-
1. That the contents of this para are refutable the Collector has perused each and every fact and circumstance of the case and passed the Order-in-Original within the ambit of law defined in the Customs Act, 1969. The seizing agency is alleging that the owner of the vehicle is responsible for the whole scenario However, the owner has already cleared his instance before the Collector Adjudication that the said vehicle was provided on rent.
2. That this para is also beyond the facts, the allegations of department are baseless, it is here to jot down that the burden of proof shifts over the department because it is a universally established maxim that "one who alleges must prove". Thus, if the owner is involved in the crime, the seizing agency must bring evidences on record regarding the involvement of the owner of smuggling.
3. That the arguments in this para are also challengeable, as the owner has already cleared his instance that the vehicle is a passenger carrier and it was under a route allotted by the personals of such business he is not connected with such persons. Additionally, the option of redemption fine and penalty is provided in Act which was applied by the Collector is accordance with law. Similarly, the allegation levelled by the seizing agency are based on presumptions if the owner has hands in gloves with smugglers the seizing agency must bring concrete evidences otherwise, presumed allegations are not acceptable in this Hon'ble Forum.
4. That the allegations levied in this para are repeated. Thus, need no comments
5. That the allegations of this para are also levelled without considering the fact that the owner was not aware about the illegal motives of the renter. He rented his vehicle for earning and bread for his family. He is not aware about the owner of the goods.
6. I have perused the case record and heard both parties. Briefly stated, the Appellant Collectorate has filed the instant appeal before this Tribunal to modify the order of Collector Adjudication whereby an option has already been given to the owners under Section 181 of the Customs Act, 1969 to redeem the vehicle confiscated under Section 157(1) & (2) of the Customs Act, 1969 carrying smuggled goods on payment of redemption fine along with penalty.
7. The undersigned concurs with the order passed by the Adjudication Officer. The learned DR for the appellant failed to produce any fresh evidence before this Bench necessitating interference with the impugned orders. Neither any proof has been submitted regarding earlier use of the impugned vehicle in smuggling activities nor any secret cavities to conceal the smuggled goods have been reported/discovered as per information available, on record. Resultantly, the instant appeal preferred by appellant Collectorate is dismissed. The learned counsel for the respondent No.2 requested for remission of penalty imposed on appellant and stated that impugned vehicle is a passenger carrier and appellant has rented his vehicle for earning, he was not aware of the motive of the renter. Penalty imposed on the appellant/claimant of impugned vehicle is hereby waived/remitted in full for the sake of justice and fairplay.
8. Before parting with this judgment, it may be observed that even otherwise imposition of penalty vis-a-vis any offence committed under the Customs Act, 1969 is beyond competence and jurisdiction of Adjudication Authority. This Tribunal has not been able to lay its hands on any of the provision of the Act which could, other than Special Judge, Customs and Taxation confer this provision and jurisdiction upon any other Authority or Tribunal. On this count the imposition of penalty is beyond any legal sanction.