1. ' IFTIKHAR MUHAMMAD CHAUDHRY, J.---By this order, we intend to dispose of Customs Appeals Nos.3 and 4 of 1997, as common question of law, is involved, in both the matters.
2. ' Precisely the facts are, that on 17th July, 1995, reportedly a smuggling Den located in the area of Jungle Pir Alizai, was raided and from the godown, huge quantity of stored contraband items, belonging to different persons, were recovered. Accordingly after completion of formalities, show- cause notices were issued to so-called owners of Goods. They filed respective replies, but the Adjudicating Authority/Collector of Customs, vide order, dated 17th July, 1995, directed, outright confiscation of the recovered goods under section 156(1)(89) and (90) of the Customs Act, 1969.
3. Because the Collector had initially disposed of the matter, therefore, the aggrieved persons, who had contested the proceedings, preferred an appeal before the Customs, Excise and Sales Tax Appellate Tribunal, which did not succeed, as was dismissed on 26th August, 1997. As such, instant Appeals have been filed, which were admitted to examine the following law-point:--- "Whether in view of section 181 of the Customs Act, 1969, the Collector/Adjudicating Authority was not under obligation, to give an option to petitioners, to pay fine, in lieu of confiscation of goods?"
4. ' Mr. Shakeel Ahmad, learned counsel, contended that appellants were entitled, as a matter Of right, for option to get released the goods, in lieu of redemption fine, in terms of section 181 of the Customs Act, 1969. Reference in this behalf, was made to PLD 1963 Kar.
5. 280.
6. ' Mr. M.S. Rukhshani, learned counsel for the Customs Department, frankly conceded to the contention, put forth by appellants' counsel.
7. ' We have examined the contention of appellants' counsel and also carefully gone through the provisions of section 181 of the Customs Act, according to which, ' whenever an order for the confiscation of goods is passed under this Act, the Officer passing the order may give the owner of the goods an option to pay in lieu of the confiscation of the goods such fine, as the officer thinks fit'.
8. Explanation attached thereto, further provides that 'any fine in lieu of confiscation of goods imposed under this section shall be in addition to any duty and charges payable in respect of such goods, and of any penalty that might have been imposed in addition to the confiscation of goods.
9. 'Provided that the Board may by an order, specify the goods or class of goods, where such option shall not be given. This section also confers further powers upon the Board to fix the amount of fine by an order, which in lieu of confiscation shall be imposed on any goods or class of goods, imported in violation of the provisions of section 115 or of a Notification issued under section 16 or any other law, for the time being enforced.
10. A plain reading of this section suggests that the law-givers have conferred discretion upon the Adjudicating Authority to give an option to the owner of goods to pay fine, in lieu of confiscation of goods, in addition to duty which is to be imposed on the confiscated goods. But as far as this discretion is concerned, it is to be exercised judiciously, because a person is being deprived of his property, therefore, he is entitled for an option, as might he will consent for the redemption of goods, on payment of fine, in lieu of confiscated goods, in addition to duties.
11. ' During hearing, learned counsel appearing for the Customs Department, had not produced before us, any Notification/Circular to the effect, that option cannot be given by the Adjudicating Authority, for release of goods, even on payment of fine, in addition to duties, because the Board had prohibited the Adjudicating Authority from giving such option. Therefore, in such circumstances, in all fairness, the appellants are entitled for an opportunity to redeem the goods, subject to payment of fine and duties. In forming this opinion, we are fortified by the judgment delivered in the case of Murad Ali v. Collector of Central Excise and Land Customs PLD 1963 (W.P.) Kar.
12. 280.
13. ' Thus, for the foregoing reasons, appeal is allowed. Order of Adjudicating Authority/Collector of Customs, dated 10-12-1995 and order of Customs, Excise and Sales Tax Appellate Tribunal, dated 26-8-1997, are set aside. Case is remanded to Adjudicating Authority, for passing fresh order, keeping in view the facts and circumstances of case, as well as the provisions of section 181 of the Customs Act, 1969.
14. ' Hereinabove are the reasons of our short order of even date.