JUDGMENT: JUSTICE (R) AKHTAR HASSAN, CHAIRMAN.--1. This order shall simultaneously dispose of various appeals shown below because in all of them the same questions of law and fact relating to smuggling of vehicles arise:-- Sr.No. Appeal No.Name of appeIlant 0-I-A No. Represented By 1 2 3 4 5
1. 621/97 M/s. Muhammad Munir Hussain. 492/97 Mian Abdul Ghaf far Adv.
2. 622/97 M/s. Ghulam Murshid. 493/97 -do-
3. 85/97 M/s. Muhammad Ashraf. 11/97 -do-
4. 406/97 M/s.Abdul Razzaq.. 261 to 263/97 -do-
5. 585/97 M/s.M.Javed. 352 to 363/97 -do-
6. 22/97 M/s.Abid Hussain. 283/96 -do-
7. 249/97 M/s.M.A wais. 120 to 122/97 -do-
8. 94/97 M/s.Haji Saeed Ahmad. 42/97 -do-
9. 396/97 M/s.Ghulam Murtaza. 207/97 Habib Ullah Khan, Adv.
10. 600/97 M/s.Azhar Mehmood. 76 to 91/97 -do-
11. 493/97 M/s.Muhammad Rashid. 231 to 242/97 -do-
12. 394/97 M/s.Nabi Baksh. 231/to 242/97 -do-
13. 484/97 M/s.Malik Manzoor Tiwana. 231/to 242/97 -do-
14. 482/97 M/s.Said W ali Jan. 231/to 242/97 -do-
15. 483/97 M/s.Haji M. Aslam. 231/to 242/97 -do-
16. 481/97 M/s.Ahmed Ali. 231/to 242/97 -do-
17. 61/97 M/s.Muhammad Shabbir 275/96 -do-
18. 496/97 M/s.Khalid Majeed. 285/97 Mumtaz-ul-Qayyum,Adv
19. 398/97 M/s.Banaras Khan. 231/to 242/97 -do-
20. 221/97 M/s.Arshad Ahmad Cheema. 36/97 -do-
21. 569/97 M/s.M.Sarwar Shahid. 301/97 M. Ather Awais,Adv.
22. 588/97 M/s.M.Sher Khan. 425/97 -do-
23. 587/97 M/s.Habibullah. 431 to 438/97 -do-
24. 623/97 M/s.M.Saqib/M. Adnan. 424/97 -do-
25. 508/97 M/s.Naveed Akram. 26/97 Mureed Hussain Butt,Adv.
26. 608/97 M/s.Nisar Ahmed. 468 to 470/97 -do-
27. 610/97 M/s.Abdul Salam. 431 to 438/97 -do-
28. 602/97 M/s.Maj (R ) M. Mazhar . 331 to 338/97 -do-
29. 561/97 M/s.Saleem Akhtar Khan. 231 to 242/97 -do-
30. 604/97 M/s.Maj Gen(R ) Kh.Rahat. 468 to 242/97 Faisal Hanif,Adv.
31. 592/97 M/s.Anjum. 468 to 470/97 S.Hamid Ali Shah,Adv.
32. 66/97 M/s.M.Aslam Khan Kichi. 266/97 Moeen Qureshi,Adv.
33. 424/97 M/s.Col (R ) Maqbool Alam. 266/97 Shahid Azeem, Adv.
34. 217/97 M/s. Javaid Ahmad. 74/97 Rana Badar Munir.Adv.
35. 568/97 M/s. Mahmood Ali 352 to 363/97 M.Akram Gondal,Adv.
36. 620/97 M/s.Abid Shah. Order-in- Remand No. 01/97Rai M.Nawaz Kharal, Adv.
37. 532/97 M/s.Riaz Ahmed. 231 to 242/97 S.Sarwar H.Shirazi
38. 574/97 M/s.Baz Muhammad. 331 to 338/97 Absent
39. 426/97 M/s.Allah Ditta. 231 to 242/97 Mian M. Bashir, Adv.
40. 427/97 M/s.Arshad Ali. 152 to 153/97 Malik Javid Iqbal,Adv.
41. 255/97 M/s.Faisal Khalid. 76 to 91/97 Iftikhar A.Mian,Adv.
42. 586/97 M/s.Pervaiz Akhtar 431 to 438/97 M.Bashir Malik,Adv.
43. 88/97 M/s.Ejaz Ahmad. 16 to 23/97 Rana. M. Zahid,Adv.
44. 106/97 M/s.Habib-ur-Rehman. 16 to 23/97 Malik Arshad Hameed,Adv.
45. 103/97 M/s.Muhammad Ayub. 16 to 23/97 Appellant in person.
46. 112/97 M/s.Arif & Saeed Ahmad. 16 to 23/97 -do-
47. 158/96 M/s.Ali Asghar . 151/96 -do-
48. 240/97 M/s.Rao.M. Iqbal. 76 to 91/97 -do-
49. 253/97 M/s.Muhammad Tasleem. 76 to 91/97 -do-
50. 254/97 M/s.Anwar H.Khan Maggasi. 76 to 91/97 -do-
51. 383/97 M/s.M.Iqbal Khan. 76 to 91/97 -do-
52. 428/97 M/s.Sajjad Hussain. 152 to 153/97 -do-
53. 429/97 M/s.Abid Hussain. 231 to 242/97 -do-
54. 432/97 M/s.Ansafr Ahmad. 154/97 -do-
55. 506/97 M/s.Rana Liaqat Hussain. 331/to 338/97 -do-
56. 507/97 M/s.Adul Rasheed. 331/to 338/97 -do-
57. 516/97 M/s.Molvi Abdul Majeed. 76 to 91/97 Absent.
58. 540/97 M/s.M.Boota. 331/to 338/97 Appellant in person.
59. 567/97 M/s.Abdul Khaliq. 352 to 363/97 -do-
60. 573/97 M/s.Nasir Mehmood. 352 to 363/97 -do-
61. 594/97 M/s.Ahmed Hussian. 431 to 438/97 -do-
62. 607/97 M/s.Amir Habib Ullah. 16 to 23/97 -do-
63. 104/97 M/s.A.Rauf & Akbar Khan. 16 to 23/97 -do-
64. 113/97 M/s.M.Afzal. 16 to 23/97 M. Ashraf Ali, Adv.
65. 7(84)/97Kamran Jang. 1841/97 M.Naeem Qazi,Adv.
66. 7(129)/97Qazi M. Farooq etc. 1880-1884/97 -do-
67. 7(130)/97Mushtaq A.Cheema. -do- -do-
68. 7(147)/97Ghulam Ali etc. 1938-1950/97 -do-
69. 7(148)/97Raja Haq Nawaz. -do- -do-
70. 7(149)/97Ch.Shakeel Ahmad. -do- -do-
71. 7(150)/97M.Masood-ul-Hassan. -do- -do-
72. 7(165)/97Babar Aslam. -do- -do-
73. 7(72)/97Muhammad Nazneen. 1640/96 M. Akram Gondal,Adv.
74. 7(137)/97M.Khalid Chohan. 1895/97 Raja Abid Hassan, Adv.
75 7(140)/97Fazal Akbar Asif. 1917/97 -do-
76. 7(81)/97Nazar Hussain Butt. 1450/96 Malik Waqar Mehmood,Adv.
77. 7(134)/97Rizwan Nasim Malik. 1930-1937/97 Raja Khalid Abbasi, Adv.
78. 7(153)/97Raja Asim Ali. 1930-1937/97 Malik Waqas Mehmood, Adv.
79. 7(169)/97Khalid Mehmood etc. 1938-1950/97 Ishfaq Ali Shah,Adv.
80. 7(177)/97Ch. Mushtaq Ahmed etc. 1930-1937/97 Malik Waqar Mehmood,Adv.
81. 7(98)/97Arshad Rahim Lone. 1839/97 Appellant in person.
82. 7(136)/97Malik M. Saleem Khan. 1938-1950/97 -do-
83. 7(181)/97Sher Alam. 2074/97 -do-
84. 7(182)/97Nasir Jamil. 1793-1802/97 Malik Qasim,Adv.
2. Keeping in view a large number of the vehicles in question, it was thought appropriate to get these appeals heard by a large Bench, and for that purpose it was constituted by four of us - consisting of the two members of the Lahore Bench and the two members of the Islamabad Bench.
3. The vehicles involved in these cases were found to have been smuggled in without paying duty and taxes. Since the persons keeping these in their possession namely the appellants in these appeals failed to show that their possession over these was lawful or that those were duty paid, the Customs Authorities op the original side ordered their confiscation but invariably allowed redemption thereof on payment of fine to the tune of 100% besides of-course paying the usual duty and taxes.
4. Each one of the appellants availed an appeal in the first instance before the Collectors (Appeals) but practically without any success. The Order-in-Original directing redemption of the vehicles on payment of the amount of fine indicated above were affirmed and hence the instant appeals before this Tribunal.
5. The main ground agitated almost by all the appellants was that the vehicles were registered here and there; that they were bona fide purchasers thereof for value without notice; that those had been sold from hand to hand in the open market; that violation of law in allowing them to enter Pakistan, if at all lay with the Customs Authorities who had been miserably remiss in discharging their duty and that it would really be regrettable to punish them rather than the officials of the aforesaid Department whose guilt allowed the evil of smuggling to perpetrate all over the country.
6. Mr. M. Javed Ghani, Additional Collector representing the Department in the appeals relied upon 1980 SCM R 114 maintaining that it was the bounden duty of the person found in possession of a smuggled item to show not only a licence for its import but also payment of the duty and taxes leviable thereon. He emphasised that under section 156 sub-section (2) of the Customs Act, 1969, the burden lo prove lawful nature of possession 'on an item shifts upon the person possessing it and that he could not claim any relief on the ground that he was its purchaser at the third or the fourth stage. He added that even registration with a Motor Registering Authority would not help the possessor firstly because such registrations were fake and secondly the vehicles were not duty paid. On this plane, he submitted that the rule laid down in CPSLA No. 1941/82 decided on 7.2.83, relied upon by Mr. Mumtaz-ul-Qayyum, Advocate in his Appeals Nos. 49,50,51/97, was of no assistance to him
7. The argument of being a bona fide purchaser appears to have had no place in the hier-archy of the customs laws. Indeed it may well amount to a lever to legalise what might have been from its inception quite illegal. Absence of any authorization to import vehicles, and failure to pay duty or taxes leviable thereon would go to the root of the trade structure and the fiscal A discipline which a state is supposed to have strongly for its own existence. The added dimension would be to accept forged and fake documents coming up like mushrooms all over the country. Obviously it will erode the system of genuine registration of motor vehicles. We are, 'therefore, constrained to repel the argument.
8. Syed Hamid Ali, Advocate in his appeal No. 73/97 (M. Anjum) placed reliance upon 1993 CLC 1663 and 1993 SCM R 2264, in support of his contention that the Show Cause Notice dated 26.7.97 was in fact issued to him a year after the seizure of the vehicle taking place on 1.1.6.96. Se stressed that such notice should have been issued within two months of the seizure as contemplated by section 168 sub-section (2) of the Customs Act,. 1969 and that since the very initiation of the proceedings against him contravened the aforesaid provision of law, the rest of the proceedings resulting in confiscation of the vehicle etc. were totally void.
9. We are afraid the time limit prescribed by sub-section (2) of section 168 read with section 180 of the Customs Act, 1969 does not render void the proceedings as to confiscation of the goods.
Contrarily, all that it provides for is to return the goods to the person from whose possession these were seized. If in this case the goods were not returned, the further proceedings as to confiscation etc. were nonetheless un-exceptionable because the smuggled nature of the goods does not get improved by non-observance of the requirements of sub-section (2) ibid. Learned counsel did not put forth any document whereby this vehicle might have been lawfully imported or possessed by him. He could not therefore, successfully well on the above mentioned technical objection.
10.In Appeal No. 59/97 Mian Nazir Azhar, Advocate assailed the imposition of 100% redemption fine on the vehicles in his case on the ground that it was ordered in blind obedience of the Circular No. 5(7)/I&P/96 dated the 27th August, 1996 of the CBR, Islamabad, which according to him, took away the discretion of the adjudicating authority seized of the relevant proceedings which in urn were of quasi judicial .nature requiring him to exercise his own judicial mind in ordering confiscation of the goods or their redemption on payment of a certain amount of fine. His view was that section 4 read with section 181 of the Customs Act, 1969 on the one hand were in conflict with section 223 of the same Act and that in so far as exercise of judicial mind was denied to the adjudicating authority in the matter of determining redemption fine, the circular of the BOR was bad in law particularly in terms of the last-mentioned section.
11.Mr. M. Javed Ghani, Additional Collector in reply maintained that the BOR fixed the redemption fine as a matter of public policy of eliminating personal whims or vagaries of the Customs Officers in imposing fine and that the same was the result of complaints against mis-use of discretion allowed to them.
12. Be that as it may, section 223 being placed seritum wise last in the statute, will have a right to be preferred against those preceding it in the arrangement. This is the rule of interpretation as laid down in Max Well on The Interpretation of Statues - Twelfth Edition by P. St. J. Langan at page 61 were it was observed:-- "-----------------one must construe the subsequent provisions of the Act in a manner which will not be inconsistent with-------------------"
Proviso to it clearly protected discretion of the appropriate officer of Customs in the exercise of his quasi judicial functions. It over-rided the BOR's instructions on the point. A presumption would arise that the appropriate officers in this case were conscious of this protective clause contained in the statute and that contrarily there was no compulsion upon them in the matter of excluding their discretion. If they still chose to award 100% fine, one could genuinely believe that they exercised their discretion as free agents under the Proviso ibid. Learned counsel attacked the vires of the said section on the ground that it was introduced through an amendment brought in the Finance Act.
We have hesitation to accept that the amendment was un-tenable only because it was brought through a Finance Act. The legislature was quite competent to enact it and hence it could not be struck down because it found its way in the statute through another Act.
13.The one fact which we cannot easily over-look was the number of vehicles involved. Although it remained to be personal responsibility of the appellants to have had seen that the vehicles they were purchasing were lawfully imported, yet remissness on the part of the concerned agencies had some contribution in creating the phenomenon. The matter was so wide that even the Government has lately announced a comparatively lenient policy F dealing with such vehicles.
However they have decided to show more indulgence to those who themselves produced such vehicles for their legalization, and left un-touched the cases of the present sorts where the vehicles were seized by the Department, Nonetheless awarding, them 100% fine was too much.
14.We allow the appeals to the extent that the pitch of fine in all these appeals is reduced to 30% of-course besides payment of the duty and taxes leviable on the vehicles.