' NAZIM HUSSAIN SIDDIQUI, J.---This judgment will dispose of C.Ps. Nos.D-3398, 3399, 3400 and 3401 of 1993 in which common questions of law and facts are involved. The facts necessary for disposal of these petitions are as follows:
2. M/s. Seven Star Enterprises CHAL No,1266 had filed five Export Bills (1) No,29863/92, dated 27-4- 1992, Invoice No,SE-009/92, dated 14-4-1992, 63600 yards, Cotton Bleached Fabric valued Rs,3,00,928 (2) No,18128/92, dated 29-3-1992, Invoice No,SE-004/92, dated 26-3-1992, 110 bales.= 110000 yards Cotton Bleached Fabrics valued Rs,6,01,416 (3) No, 27815/92, dated 22-4-1992, Invoice No,SE-008/92, dated 11-4-1992, 405 bales = 405000 yards cotton grey and dyed cloth valued Rs,15,76,568 (4) No,26260/92, dated 19-4-1992, Invoice No,SE-007/92, dated 18-4-1992 198 bales = 292000 yards cotton dyed and grey cloth valued Rs, 650647 and (5) No, 34544/92 dated 6-6-1992, Invoice No,IL/018/92 dated 28-4-1992, 298 rolls = 74350 yards cotton printed cloth value Rs,8,77,622 on behalf of the petitioners namely M/s. Saima Enterprises and M/s. Inayat Limited, 7th Taj Plaza, Kotwali Road, Faisalabad, for the export of blended dyed, bleached, grey and printed fabrics. Said 'export bills were processed by the staff of the aport Processing Section and those consignments were brought at TR-2 of M/s. Riazada Container Yard for Custom Examination and the export thereof. The consignments were examined by a Custom Team consisting of Mr. Abdul Hafiz Principal Appraiser, Mr. Irshad Ahmad Appraiser, and Ch. Maqbool Ahmed, Examining Officer, Export Intelligence Branch, Collectorate of Exports in presence of two Mashirs namely, Abdul Ghani and Iftikhar Ahmad. Three samples of each consignment were drawn, and sealed. One sealed and signed sample of each consignment was forwarded to the Customs Laboratory for test to ascertain whether fabrics were blended or made of Cotton. The test report, however, confirmed that said fabrics were made of cotton only instead of being blended. The Custom Authority reached the conclusion that the mischief was done by the petitioners with the object to defraud national exchequer by availing higher rate of duty drawback, as provided under Notifications SRO- 1026(I)190, dated 27-9-1990 as against the actual contents of the consignments covered by Notification SRO-1083(1)/90, dated 18-10-1990, having lower rates of duty drawback.
3. It is also the case of the Custom Authorities that if they would have not detected the aforesaid mischief, the petitioners, with connivance of clearing agent M/s. Seven Star Enterprises, would have defrauded the Government to the extent of Rs,11,41,815. Accordingly, F.I.R. Under section 32 read with section 178 punishable under clause 14 read with clause 77 of 156(i) of the Custom Act, 1969 was registered against the petitioners and said Clearing Agent.
4. The petitioners have claimed that they are leading Exporters of Textile products and are stationed at Faisalabad. According to them, they do not themselves manufacture and in order to meet the export demands, buy the required textile products as per description from open market in Faisalabad and get the same packed in the factory or in the premises of Supplier and ship them through their clearing agents to the destination. They stated that the said consignment reached Karachi Port from Faisalabad and their clearing agents filed necessary documents before the concerned authority for exporting the goods in question. They have asserted that since' they had purchased the goods at Faisalabad and the same were packed by the Suppliers, as such, they had no knowledge that the goods were not of the same description for which they had paid.
5. It is also the case of the petitioners that respondent No,2 Collector of Customs Exports, after seizing all the five consignments of the petitioners, bifurcated the case as if they were five cases and issued a show-cause notice himself in respect of one consignment and the remaining four consignments were dealt with by the respondent No,1, Deputy Collector of Customs Exports. The petitioners exchanged correspondence with the respondents.
6. The respondent No,1 by Order No,1145/93 (in C.P.No,D-3398/93) held that the exporters had intended to defraud the national exchequer, misdeclared the goods deliberately, and imposed penalty of Rs,83,233 under section 156(1), clause 14 of the Custom Act, 1969. He further imposed penalty of Rs,25,000 on exporters under section 156(1), clause 17 of said Act. A penalty of Rs,35,000 was also imposed on said clearing agent. By Order No,1146/93 (in C.P.No,D-3399 of 1993) for the same reasons the respondent No,1 imposed penalty of Rs,2,92,160 upon the petitioners and also imposed further penalty of Rs,25,000 on said exporters. A penalty of Rs,35,000 was also imposed on the clearing agent. By Order No,1147/93 (in C.P. No,D-3400 of 1993) the respondent No,1 for the same reasons imposed penalty of Rs,1,63,095 and Rs,25,000 on the petitioners. Also a penalty of Rs,35,000 was imposed on the clearing agent. By Order No,1148/93 (in C.P. No,D-3401 of 1993) the respondent No,1 imposed penalty of Rs,1,94,956 and Rs,25,000 on the petitioners. A penalty of Rs,35,000 was also imposed on the clearing agents.
7. The Appeals and Revisions against the said orders were dismissed by the Collector Appeal and Additional Secretary, Central Board of Revenue.
8. In these petitions the petitioners have impugned all the aforesaid Orders of the Customs Authorities.
9. Mr.Sohail Muzaffar learned counsel for the petitioners initially raised various grounds in support of these cases but ultimately confined the arguments to the plea that the show-cause notices issued by the respondents were hopelessly time-barred and were in violation of the mandatory provisions of section 168 read with section 180 of the Act, and that on this ground alone the goods of the petitioners should have been returned to them unconditionally. Elaborating it, he submitted that the consignments were intercepted/seized on 27-4-1992 and the F.I.R. Was lodged on 19th July, 1992 and within the prescribed period of two months of seizure, the show-cause notices were not issued to the petitioners. Sections 168 and 180 of the Act on which the learned counsel has relied upon are as follows:--- SECTION 168:
(1) The appropriate officer may seize any goods liable to confiscation under this Act, and where it is not practicable to seize any such goods, he may serve on the owner of the goods or any person holding them in his possession or charge an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer.
(2) Where any goods are seized under subsection (1) and no show-cause notice in respect thereof is given under section 180 within two months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: ' Provided that the aforesaid period of two months may, for reasons to be recorded in writing, be extended by the Collector of Custom by a period not exceeding two months.
(3) The appropriate officer may seize any documents or things which in his opinion will be useful as evidence in any proceeding under this Act.
(4) The person from whose custody any documents are seized under subsection (3) shall be entitled to make copies thereof or take extracts therefrom in the presence on an officer of Customs.
SECTION 180: ' No order under this Act shall be passed for the confiscation of any goods or for imposition of any penalty on any person, unless the owner of the goods, if any, or such person---
(a) is informed in writing (or if the person concerned consents in writing, orally) of the grounds on which it is proposed to Confiscate the goods or to impose the penalty;
(b) is given an opportunity of making a representation in writing (or if the person concerned indicates in writing his preference for it, orally) within such reasonable time as the appropriate officer may specify, against the proposed action, and
(c) is given a reasonable opportunity of being heard personally or through a counselor duly authorised agent.
10. Bare reading of proviso of subsection (2) of section 168 ibid shows that the period of two months could be extended by the Collector by a further period of two months. Section 168 relates about the seizure of the goods, while section 180 deals with the show-cause notice issued for the purpose of confiscation of goods. It is to be noted that the provisions of subsection (2) of section 168 do not control the provisions of section 180, and in the latter section no time limit is prescribed for issuing such notice. Section 180 requires that in case of confiscation of goods or imposition of penalty a show-cause notice, as per terms of this section, be issued to the owners of the goods, if any.
Therefore, irrespective of the fact that the period prescribed under section 168 has expired, still the Custom Officer under section 180 can issue notice for the confiscation of goods or imposition of penalty. It is, however, significant to note that the words that "the goods shall be returned to the person from whose possession they were seized", appearing in subsection (2) of section 168 refer to the goods whose mere possession is neither prohibited nor is punishable under the law. The goods like narcotics, arms, or any other article, the mere possession of which is an offence under any law, is not covered by the provisions of subsection (2) of section 168.
11. The respondents have claimed that necessary show-cause notices. Were issued to the petitioners within the stipulated period and this fact is corroborated by the reply of the Clearing Agents to whom show-cause notices were issued on the same day. Learned counsel for the petitioners, however, maintained that said show-cause notices were issued on 9-12-1992. The record, however, shows that notices were received by the Clearing Agents on 2-11-1992. The respondent No,1 in his detailed order, dated 28th February, 1993 has held that said notices were served on the clearing agents within time. Mr. Sohail Muzaffar argued that the record was manipulated by the respondents in order to cover the delay involved in this matter. There is, however, nothing on record to substantiate this plea of the learned counsel for the petitioners. In any case, while exercising writ jurisdiction, the disputed facts cannot be investigated.
12. Learned counsel for the petitioners also argued that notice under section 171 of the Customs Act, was also not served upon the petitioners. The record indicates that it was served upon Shabbir Ahmed on 19-7-1992, who was a Representative of the Clearing Agent. There is no force in this contention also. Accordingly, we do not find any merits in these petitions.
13. On 30-11-1995 after hearing the arguments of learned counsel for the parties, we had dismissed these petitions in limine and these are the reasons for the same.