JUDGMENT MUNAWAR AHMED MIRZA, J.- This petition for leave to appeal is directed against judgment/order dated 21st April, 1997, passed by Lahore High Court in Writ Petition No. 9952/93.
2. Relevant facts briefly mentioned are that Truck No. PRL-4669 belonging to petitioner Talay Zar and driven by him was intercepted by staff of Directorate General Intelligence and Investigation (Customs, Excise and Sales Tax), Lahore, on 9th December, 1990. On search it revealed that same was carrying foreign origin second hand serviceable auto parts, which are prohibitory and notified items in terms of SRO No. 491 (1)/85 dated 23rd May, 1985, issued under section 2(s) of Customs Act, 1969. The matter came up for adjudication before Deputy Collector Customs who by means of order dated 30.7.1991 directed confiscat On of goods, besides the Truck in question was redeemed subject to payment of Rs. 1,00,000/- (Rupees one lac). Operative portion of the order is reproduced below:- "I have examined the case papers as well as the submissions advanced by the advocate willingness of the owner of the goods for making payment of duty and taxes on the seized goods establishes that the same were illegally brought in the country. Since the recovered goods i.e. Engines and spare parts etc. Come under the definition of auto parts which is notified items in terms of notification SRO 491(1)85 dated 23.5.1985 issued under section 2
(S) of the Customs Act, 1969, the goods are confiscated outright under the above provisions of law.
5. As far as the truck, admittedly it was found loaded with the impugned goods. The same shall suffer penal action as well. The truck in question is ordered release on payment of fine of Rs. 1,0, 000/- (Rupees one lac only) in lieu of confiscation."
3. Petitioners aggrieved from above order filed Appeal No. 1583 before Collector (Appeals), Central Excise and Land Customs, Lahore, which was rejected vide order dated 10th September, 1991.
However, redemption fine was reduced from Rs. 1,000,000/- (Rupees one lac) to Rs. 50,000/- (Rupees fifty thousand). Petitioners feeling dissatisfied then filed revision before Central Board of Revenue, which was partly accepted and to Collector (Appeals) for consideration of the matter and passing fresh speaking order. Relevant observations are given below:- "3. Muhammad Naeem Qazi, advocate, appeared on behalf of the applicants for personal hearing of the revision application and contended that the appellate authority had announced release of the impugned auto-parts against redemption fine and that is why he had ordered that assessable value be determined in consultation with the Appraising Staff of the Collectorate of Customs with reference to Sections 25 and 25(B) as the case may be. He also pointed out that there were no new parts in the seized consignment as had been wrongly mentioned by the Appellate authority.
4. The Federal Government finds a lot of confusion in the operative part of the impugned order. The case is, therefore, remanded to the Appellate Authority for passing a speaking and clear order. The revision application is disposed of, accordingly."
4. Thereafter matter came up before Collector Appeals, who by means of order dated 5.11.1992 maintained the order passed by adjudicating officer and rejected the appeal. Concluding portion of the Order reads, thus:- , "However, in the larger interest of justice and fair play, I have myself thoroughly examined all aspects of the case in a fair, impartial and objective manner. The perusal of the case record leaves hardly any doubt in a mind that the subject auto parts had been smuggled into Pakistan in breach of the relevant provisions of law. As the appellants has failed to discharge his onus under the provisions of section 156(2) ibid, the orders of the learned adjudicating officer being correct in law and on facts are confirmed and the appeal rejected because it is a devoid of any merit substance or legal force, whatsoever."
5.The above order was again challenged through revision before Additional Secretary, Government of Pakistan, which was eventually dismissed vide order dated 12.4.1993. Operative portion reads as under:- "4. Records of the case have been examined and the arguments advanced by the applicants dully considered. The case was remanded to the appellate authority in order to reconcile the contradictory findings in the appellate order. The appellate authority after giving an opportunity of personal hearing and examination of case record has given clear findings in the impugned order.
The appellate authority in Order-in-Appeal No. CUS- 897/91 had held, "No proof or evidence of legal import or payment of duty has been furnished. The goods are, therefore, correctly confiscated".
5. Considering all the aspects of the case, the Federal Government, does not find any reason to interfere with the impugned order. The revision application has no merit and is accordingly, rejected."
6. Petitioners feeling aggrieved from above decisions of departmental authorities had filed Writ Petition No. 9952/93 before Lahore High Court. Considering all the aspects of case and dilating upon real controversy said Constitution Petitional was dismissed by learned Judge in Chamber of High Court vide Order dated 21.4.1997, holding that prayer regarding option claimed by petitioners for release of seized goods against payment of fine and other duties purported to be under section 181 of Customs Act has been rightly declined. The High Court further affirmed that departmental forum while directing confiscation of goods have properly exercised jurisdiction by examining the grievances in its true legal perspective. Relevant portion is reproduced below:- "I have considered the contentions and have gone through all the orders impugned in this petition, itis reflected from the perusal thereof that the petitioners failed to bring on record any evidence, worth consideration to the effect that the disputed goods were imported into country through legal permit, itwas determined as a fact that the goods were smuggled into Pakistan without having legal cover.
All the forums below after providing opportunity of hearing to the petitioners have set at rest the factual controversy and came to a definite conclusion that goods are brought into the country in violation of law. The impugned order, therefore, are neither perverse nor whimsical and the learned counsel has failed to point out any illegality warranting interference in this matter in the exercise of constitutional jurisdiction under Article 199, of the Constitution. As far as the prayer of the petitioner in terms of section 181 of the Customs Act, 1969, regarding exercise of option is concerned, the forum below keeping in view the facts of this case have not allowed it to the petitioners, In the terms it cannot be stated that the discretion exercised by the forum" below are whimsical or perverse Consequently the writ petition having no force is dismissed."
7. Ch. Muhammad Yaqub Sindhu, ASC, for petitioners, contended that option available to petitioners under section 181 of Customs Act for claiming the goods subject to payment of penalty and other charges has not been examined by the adjudicating authorities, appellate or revisional, forums, therefore, great prejudice has been caused to the petitioners.
8. Mr. A. Karim Malik, ASC, for respondents has drawn our attention to SRO 491(1) 85 dated 23.5.1985 issued under section 2 (S) of Customs Act, 1969, wherin auto parts are banned being notified goods. Therefore, transportation of such items into Pakistan through infrequent routes is prohibited as rightly held in the impugned orders, which accordingly do not warrant interference.
9. It is quite manifest, that apart from above prohibition the seized goods fall within ' Negative List' contained in Section II Chapter 4 of Import Police Order 1990-91, therefore, option contemplated by section 181 of Customs Act is not attracted in favour of petitioners. Thus departmental forums or the High Court while passing impugned orders have not committed any illegality in refusing to grant the facility claimed by petitioners. No other point has been urged in the matter.
10. For the above reasons we do not find any substance in this petition, which is consequently dismissed and leave to appeal declined.