' Present writ petition arises out of the order, dated 20-3-2001 passed by the Customs, Central Excise and Sales Tax Appellate Tribunal, Lahore Branch, Lahore whereby the appeal filed by the petitioner was adjourned sine die to await the verdict of the High Court in similar cases which have already been disposed of through judgment, dated 20-6-2001.
2. Brief facts of the case are that the petitioner while returning from Bangkok through Flight No,TG- 505 on 19-9-1999 imported certain goods as accompanied baggage comprising of Mobile Phone Nokia with battery 30 pieces, Mobile Phone adopters 30 pieces, Sony Digital Still Camera and Sony Video Camera Recorder. These goods were seized by the Customs Authorities at Lahore Airport vide recovery memo. Dated 19-9-1999 as the same were found to be in commercial quantity and in violation of Baggage Rules, 1998. A show-cause notice was issued to the petitioner under section 171 of the Customs Act, 1969. The Additional Collector, Customs Headquarters vide his order in original dated 13-11-1999 outrightly confiscated the goods without any choice of redemption. The petitioner filed an appeal before the Collector of Customs, Central Excise and Sales Tax (Appeals) Central Zone, Lahore. The appeal filed by the petitioner was also dismissed vide order dated 24-1-2000. The petitioner challenged that order by filing an appeal before the Customs, Central Excise and Sales Tax Appellate Tribunal, Lahore which was adjourned sine die in view of other cases pending decision by the High Court vide order dated 14-11-2000.
3. The learned counsel for the petitioner contended that section 181 of the Customs Act vests a discretion in the Customs Office either to confiscate the goods or to release the same on the payment of redemption fine. But the discretion has been done away with by the C.B.R. By issuing letters, dated 16-2-1998 and 24-2-1998. It is argued by the learned counsel that the C.B.R. Is the highest authority in the hierarchy of the Customs Department yet ij lacks jurisdiction whatsoever_ to interfere in the judicial or quasi-judicial exercise of jurisdiction by the subordinate officers.
Reliance was placed in case C.B.R. And another v. Sheikh Spinning Mills Limited, Lahore and others 1999 SCM R 1442. A judgment by the Division Bench of this Court in Customs Appeal No,160 of 1998 was also relied.
4. Earlier in such-like cases the Tribunal has taken a view that the interest of justice would be served if the goods are released on payment of custom duty and other taxes besides redemption fine equal to 30 to 75% of the value of goods. Section 181 of the Customs Act, 1969 envisages that 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. Any fins. In Iieu 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 goods.
5. The plea of the petitioner appears to be attractive on the face of it but in the instant case the confiscation was ordered under sections 156(1), 9, 70 of the Customs Act, 1969. However, it appears that the confiscation was ordered by the Adjudicating Officer in view of order of the C.B.R. Dated 16- 2-1998. This shows that the order was passed in a mechanical manner without application of mind.
There is yet another aspect of the case which is that after the confiscation made by the Custom Authorities under various provisions of Customs Act, 1969, the confiscated consignment is subsequently disposed of through open auction. Thus, the goods/articles imported even unlawfully but confiscated ultimately flows in the local market. It would operate very harsh against the petitioner. As the order passed by the Adjudicating Officer suffers with infirmity that it was not passed by an independent application of mind and the Additional Collector passing the order was swa yed by the instructions issued by the .C.B.R. Vide Letter No,5(4)L&P/98, dated 16-2-1998, therefore, the said decision is not sustainable in law. Similarly the order passed by the appellate forums did not consider this aspect of the case, therefore, the same cannot be upheld. A Division Bench of this Court has already struck down the order, dated 16-2-1998 issued by the C.B.R. And the impugned order has been passed contrary to the judgment of this Court. Therefore, the writ petition is allowed. All the three orders, dated 14-11-2000, 24-1-2000 and 13-11-1999 passed by the respondents Nos.1 to 3 are declared to have been passed without lawful authority and keeping in view the interest of justice, the consignment imported by the petitioner is directed to be released on payment of 75 per cent. Of redemption fine in addition to any duty and charges payable in respect of such imported goods.