' Through this consolidated judgment, I propose to dispose of Writ Petitions Nos.14046, 14047, 14048, 14049, 14050, 14051, 14052, 14053, 14054, 14055, 14056, 14057, 14058, 14059, 14060, 14061, 14062, 14063, 14064, 14065, 14066, 14067, 14068, 14069, 14070, 14071, 14072, 14073, 14079, 14615, 14616, 14617, 14618, 14619, 14620, 14621, 14622, 14623, 14624, 14625, 14626, 14627, 14628, 14629, 14630, 14641 of 2001. In all these writ petitions, common question of law and fact is involved, therefore, these are decided together. In all these writ petition& pre-admission notices were issued to the respondents who appeared and filed parawise comments. The learned counsel appearing for the parties argued at length, therefore, these petitions are admitted to regular hearing and are decided accordingly.
2. ' The case of all the writ petitioners is that they were residing abroad in connection with their service and vocation and when they returned to Pakistan on transfer of residence they brought a unit of used vehicles under Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000.
The petitioner filed declaration on their arrival in respect of the said vehicles under Vehicles Rules, 2000. The respondents Customs Authorities refused to release the vehicles and observed a contravention of rule 3(4) of Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000.
Aggrieved from the order of refusal passed by the Assistant Collector, CFS, Customs Lahore the petitioners filed separate writ petitions.
3. The counsel for the petitioner has argued that the petitioners have not violated any provision of the Baggage Rules, 2000 and in any case if any violation is alleged even then the petitioners are entitled to seek the release of the confiscated vehicles on payment of fine as contemplated under section 181 of the Customs Act, 1969. Reliance in this behalf was placed on a case titled Muhammad Arif and others v. Collector of Central Excise and Land Customs, Quetta and others reported as 1998 CLC 1664, case titled Murad Ali v. Collector of Central Excise and Land Customs reported as PLD 1963 (W.P.) Karachi 280 and case titled Riaz Hussain v. Board of Intermediate and Secondary Education and others reported as 2000 SCM R 661. It was also argued by the learned counsel for "the petitioners that he has no other efficacious remedy as no appeal has been provided against any order in respect of goods or vehicles brought in as baggage and the jurisdiction of the Appellate Tribunal was completely ousted under section 194-A. The learned counsel for the Revenue however, controverted the argument of the petitioners and relying on the provisions of section 195 of the Customs Act, 1969 argued that the petitioners although have no right of appeal but they could avail the remedy of revision under section 195 of the Customs Act, 1969 which is adequate and efficacious remedy. It was next argued on behalf of the respondents that S.R.O.
No,1374(I)/98 dated 17-12-1998 provided a benefit of 2% redemption fine for the vehicles imported under S.R.O. No,599(1)/93 dated 17-7-1993 and as the subsequent S.R.O. No,599(I)/93 stands superseded therefore, the redemption fine of two per cent. Is no more available to the petitioners.
4. Earlier S.R.O. No,599(1)/93 dated 17-7-1993 held the field in relation to the import of used vehicles on transfer of residence the S.R.O. Was superseded by Appendix G of S.R.O. No,489(I)2000 dated 17- 7-2000 which is known as Import Policy Order, 2000. It was appropriate to calrify the confusion of S.R.Os. Created by the department. S.R.O. No,489(1)2000 dated 17-7-2000 is a notification issued under subsection (1) of section 4 of the Imports and Exports Act, 1950 and it is called Imports Trade and Procedure Order, 2000. There are various appendices to this SRO which are Appendices-A to H.
Paragraph 15 of the Import Trade and Procedure Order, 200r provided for import of vehicle under Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000. It is further provided that import of such vehicles shall be allowed as per rules and procedure prescribed in Appendix G. The Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000 are given in Appendix G.
According to these Rules Pakistani citizens were made eligible to import or gift a vehicle subject to the conditions given in the rules. Under rule 3 vehicles which were more than two years old were not allowed to be imported except under transfer of residence and in sub-clause (4) of rule 3 it was provided that in case of personal baggage the imported vehicles must be registered in the name of the applicant in case of transfer of , residence at least two years prior to departure from Pakistan.
5. S. R. O. No, 1374(I)/98, dated 17-12-1998 was issued by the CBR under section 181 of'the Customs Act, 1969. It still holds the field. Sub-clause (d) of this SRO provided that the quantum of fine in lieu of confiscation shall be such as specified in Column 3 of Table III in respect of goods specified' in Column 2 thereof. Column No,3 of Table III of Entry No,5 is reproduced as under:-- "Vehicles imported under the Transfer of Residence/Baggage Scheme in violation of any condition as envisaged in the Notification No,S.R.Q.No,599(I)/93, dated 17th July, 1993, for which clearance permit/no-objection certificate for release has been issued by the Ministry of Commerce."
6. The analysis of the Import Trade and Procedure Order, 2000 and its Appendix G containing the Personal Baggage and Gift Scheme (Import of Vehicles) Rules, 2000 establishes that on transfer of residence import of vehicles was allowed. The petitioners in all these writ petitions have brought vehicles under the Bagge Rules, 2000. Therefore, there was no illegality imputable in the import of the vehicles. The confiscation of vehicles was directed because according to the Assistant Collector the vehicles imported was in violation of sub-clause (4) of rule 3 of the Baggage Rules, 2000 and that it was not found registered in the name of the petitioner at least two years prior to his departure for Pakistan., This violation led to confiscation of the vehicles.
7. Section 181 of the Customs Act, 1969 envisages that in cases where the order of confiscation of goods is passed under the Act, the officer passing the order may give the owner of the goods an option to pay in lieu of the confiscation of goods such fine as the officer thinks fit. Second proviso of section contemplates that the Central Board of Revenue (CBR) by an order fix the amour of fine which in lieu of confiscation shall be imposed on any goods or class of goods imported in violation of the provisions of section 15 or of a notification. Issued under section 16 or any other law for the time being in force. Admittedly S.R.O. No,1374(I)/98, dated 17-12-1998 was issued by the Central lifeasd of Revenue in exercise of the power conferred upon it under section 181 of the Customs Act, 1969. The rules contained in this S.R.O. Still hold field. The respondents have refused to provide an option merely on the consideration that under this S.R.O., fine of two per cent. Is provided for those vehicles which were imported under Transfer of Residence Scheme as envisaged in the Notification No,S.R.O. 599(1)/93, dated 17-7-1993. According to the Revenue because S.R.O.599 (1)/93 stands superseded therefore, there did not exist any permissible rules for allowing redemption of vehicle on admission of fine. I am afraid that pleas raised by the respondent have no substance. In fact S.R.O. 599(I)/93, dated 17-7-1993 inter al a provided a scheme for importation of vehicles under the Transfer of Residence Baggage Scheme. The said scheme has not been discontinued as it finds re- appearance under paragraph 15 of the Import Trade and Procedure Order, 2000 and in pursuance of policy the rules known as Personal Bggage and Gift Scheme (Import of Vehicles) Rules, 2000 were enforced which are contained in Appendix-G of Import Trade and Procedure Order, 2000, as the used vehicles were allowed to be imported under the Transfer of Residence Scheme therefore, mere mention of S.R.O. 599(1)/93 in earlier S.R.O. 1374(1)/98 would not affect the right of the petitioners to obtain their confiscated vehicles on payment of fine. The plea raised by the Revenue is hypertechnical in nature. In pith and substance the import of the used vehicle under the Transfer of Residence Scheme is permissible under the Import Trade and Procedure Order, 2000 and in the event of any confiscation order passed for violation of any condition of the Scheme, the importer would be entitled to get the release of the vehicles on payment of fine. It was incumbent upon the Assistant Collector, CFS Customs to provide an option for payment of fine in lieu of confiscation and having failed to do so he has not acted in accordance with law and failed to exercise the jurisdiction vested in him.
8. As regards the remedy of revision provided under section 195 of the Customs Act, 1969 on the executive side, it would suffice to observe that it may not be an adequate and efficacious remedy in these particular cases.
9.Therefore, all the impugned orders passed by the Assistant Collector of Customs of outright confiscation are set aside. He is directed to release the confiscated vehicles to the petitioners on payment of ten per cent. (10%) fine in lieu of the confiscation besides the prescribed customs duty, levies and taxes.