' Instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the order dated 25-5-1994 passed by Member Judicial/Central Board of Revenue, Karachi whereby the revision petition filed by the petitioners was dismissed.
2. Briefly stated the facts are that the petitioners transported China Silk Cloth and art silk cloth from Skardu to Islamabad by air on 27-8-1992. After reaching Islamabad Airport they got the good cleared from the Customs Authorities and made for Rawalpindi city in two different cabs. They were followed by the custom officials and were made to stop near P.A.F. Cinema, Chaklala Road, Rawalpindi. As a result thorough search of the cabs the Custom Authorities recovered 6658 yards of art silk cloth said to be made of China. The Customs Officials on the pretext that petitioners could not account for the lawful possession of said cloth seized the same and consequently registered F.I.R. No, 443 of 1992 dated 27-8-1992 at Police Station Waris Khan, Rawalpindi under section 156(1)(89) of Customs Act, 1969. They were also arrested and were sent up for trial before Special Judge, Customs, Islamabad. Simultaneously departmental proceedings were also initiated against the petitioners for importing said cloth and confiscated the remaining quantity of cloth.
The petitioners were issued a show-cause notice on 22-10-1992 as to why the goods seized be not confiscated. They submitted its reply on 17-1-1993. However, the Deputy Collector Customs vide order dated 25-5-1993 released 1000 yards of said cloth and confiscated the remaining quantity of cloth. The petitioners then challenged the said order dated 25-5-1993 by filing an appeal which was also dismissed by the Collector of Customs Central Excise and Sales Tax (Appeals), Northern Zone, Lahore vide order dated 12-9-1993. The petitioners then filed a revision petition with the Additional Secretary/Member Judicial (C.B.R.), Custom House, Karachi against order dated 12-9- 1993 (despatched on 20-121993) who also dismissed the same vide order dated 25-5-1994. Hence the instant writ petition.
3. In response to notices issued to the respondents, they submitted their parawise comments which form part of record.
4. Arguments have been heard and record perused.
5. Stand of learned counsel for the petitioners is that petitioners had imported the said cloth from China to Skardu and thereafter from Skardu to Islamabad, that they got the goods cleared from the Customs Authorities at the Islamabad Airport, that they produced as many as 17 receipts (P.1 to P.17) to prove that goods seized had been imported under valid custom receipts but the respondents without verifying the authenticity of the said receipts, confiscated the goods except 1000 yards of cloth, that once the custom duty had been paid on the imported goods it could not be treated as smuggled item, that even on legal score the proceedings initiated by the respondents are not warranted by law.
6. Conversely the learned counsel for the respondents has supported the impugned orders.
7. A perusal of record shows that 154 Thaans of China Silk and art silk cloth measuring 6658 yards was seized by the department. The matter was taken up before Deputy Collector of Customs, Islamabad who was shown the receipts regarding the purchase of said cloth. He accepted the receipts Nos. 1908 dated 25-5-1992, 3121 dated 14-8-1992 and 1259 dated 28-6-1992 and as such allowed the release of 1000 yards of seized cloth. However, he did not accept the other receipts and ordered the confiscation of remaining cloth measuring 5658 yards. This order of Deputy Collector, Customs, dated 25-5-1993 was assailed before the Collector Customs Central, (Appeals), who dismissed the appeal vide order dated 12-9-1993. The main ground which weighed with the Collector Appeals is that receipts produced by the petitioners were in no way connected with the cloth seized from them. While upholding the decision of Deputy Collector dated 25-5-1993 he has simply relied upon the observation of Deputy Collector and has not applied its own mind independently. The order dated 25-5-1993 reveals that Deputy Collector Customs considered only three receipts to be genuine as the same were in the names of the present petitioners. The detail of receipts given in order dated 25-5-1993 reveals that various other receipts were also issued in the names of the petitioners but those have not been accepted as genuine for reasons best known to the said authority. Similarly petitioners had produced other receipts in the name of other person.
However, these receipts have also not been accepted as genuine without any cogent reasons. The orders dated 25-5-1993 and 12-9-1993 do not reveal if the said receipts were got verified from any person. In the absence of verification of receipts it cannot be held with certainty that the said receipts were not genuine. It is evident from order dated 25-5-1993 that 23 receipts pertaining to the import of cloth were produced by the petitioner before the Custom Officers at the time of seizure on 27-8-1992 and 15 receipts were also produced during the course of hearing of said petition. These receipts clearly show that custom duty in respect of art silk cloth had been paid to the department. Had the receipts been produced later on by the petitioners, it could be argued that the same had been fabricated later on. However, this is not the factual position. Thus, it is clear that impugned order dated 25-5-1993 has not been passed correctly. So far as order dated 12-9- 1993 (despatched on 20-12-1993) of respondent No,3 is concerned, that does not contain any independent reasons for upholding order dated 25-5-1993. Again the order dated 25-5-1994 of respondent No,2 appears to have been passed without examining the record. It is held by respondent No,2 in the impugned order dated 25-5-1994 that receipts produced by the petitioners were got verified by the adjudicating officer. This observation is not supported from any evidence available on record. Again he (respondent No,2) has held that 15 receipts were acquired after the date of seizure of cloth. This finding is also factually incorrect. Admittedly seizure took place on 27- 8-1992. The petitioners produced 23 receipts at the time of seizure and 15 receipts during the hearing of petition. Out of these 38 receipts only one receipt is dated 1-12-1992. Again he held that most of the receipts relate to as far back as 1988. This observation is also incorrect as out of 38 receipts Only two receipts pertained to 21-6-1988. All these facts clearly prove that even respondent No,2 did not apply his mind independently. It is also to be noted that there was no violation of the baggage rules committed by the petitioners. According to the baggage rules a limited quantity of cloth can be brought by a passenger for which no tax is payable. As in the instant case custom duty has been paid on the art silk cloth so the question of violation of baggage rules on the part of petitioners does not arise. The petitioners had brought the goods from Skardu to Islamabad after paying custom duty at Sust Check-post and they had also paid custom duty even at Islamabad Airport. They were in possession of receipts regarding the import of goods which has been seized in the instant case.
8. Since the petitioners were in possession of receipts regarding the import of ark silk cloth recovered from their possession at the relevant time and the receipts have not been got adjudged and verified to be ingenuine so the action of the Custom department in seizing the goods and thereafter confiscating the same is illegal and void. Consequently writ petition is accepted and the impugned orders dated 25-5-1993, 12-9-1993 and 25-5-1994 are hereby set aside. The department is directed to release the cloth to the petitioners immediately.