JUSTICE (R) ABDUL MAJEED TIWANA, CHAIRMAN.--(1). This appeal is directed against the order- in-original, dated 24.6.1999, by which Collector of Customs, Lahore:-- (i)outrightly confiscated the seized gold under section 156(I) clause 8 and 14 of the Customs Act, 1969; (ii)outrightly confiscated the insect killers, video games, cooking utensils and manual exercisers etc. forming part of the consignment in which gold was being smuggled, under section 157 of the said Act; (iii)imposed personal penalty of Rs, 500,000/- each on Haji Noor Muhammad Toor and Mohammad Yaqoob, partners of M/s. Moon International (the appellant herein) under section 156(I) clause 8 and 14 read with section 178 of the said Act; (iv)imposed personal penalty of Rs, 50,000/- each on Rana Umar Farooq, Abdul Ghaffar and Abbas Ali, the other partners of M/s. Moon International, and Asif Saleem, who unauthorized tried to get the goods cleared from the Customs under section 178 of the said Act; and
(v) imposed penalty of Rs, 25000/- on the Clearing Agent, M/s. Atta Brothers and directed the Licensing Authority to proceed against this firm under the Custom House Agents (Licensing) Rules.
2. Facts of the case giving rise to this appeal are that persuant to an information received by the Lahore Customs about the possible smuggling of gold concealed in the consignment of insect killers etc., the AFU scrutinized the record relating to bill Of entry No, 09346, dated 19.11.1997, imported by M/s. Moon International, Hall Road, Lahore, appellant No, 1 herein, filed by M/s. Atta Brothers, Customs Clearing Agents, Lahore. The said consignment was located and its thorough search in the presence of Asif Saleem, as representative of the importing firm, led to the recovery of gold of foreign origin weighing 2640 tolas (264 bars of 10 tolas each) which stood concealed in the heads of insect killers and pan sets. On importer's inability to prove its lawful import, the gold alongwith insect killers and some other articles was seized on 26-11-1997 U/s. 168(1) and 157 of the Customs Act, 1969, for committing various offences.
3. During investigation of the case, Asif Saleem, as a representative of the aforesaid importing firms, allegedly stated that one Muhammad Yagoob (appellant No, 3) had brought to him the import documents of the said consignment and he (Asif Saleem) filed the same at AFU, Lahore, for clearance but gold had not been declared in the bill of entry. Asif Saleem further alleged that he had filed the bill of entry with the Customs Authorities on .19.11.1997 and despite the orders of 100% examination of the consignment issued by the higher Customs Authorities, Abdul Waheed Customs Inspector partially examined the consignment and his report was countersigned by Ehsan-ul-Haq, Deputy Superintendent, Customs, and after the completion of examination formalities, the original documents alongwith the bill of entry were taken away by Mohammad Yaqoob (appellant No, 3). He further disclosed that Haji Noor Muhammad Toor (Appellant No, 2) also used to visit Lahore Airport for the release of previous consignments and he and Mohammad Yaqoob had identified themselves as partners in business of the said firm. Further investigation revealed that Mohammad Yaqoob (appellant) had obtained the delivery order from Lufthansa Air- Lines in respect of the said consignment, and that "Hall Road, Lahore" address of the said firm was fictitious and its address in the record of Lahore Chambers of Commerce & Industry was "Moor Khunda, Sheikhupura" but that record was later stolen from there on 27.11.1997, the day the seizure of consignment was effected by the Customs Authorities, and the Chamber reported the matter to the police, vide F.I.R., dated 27.11.1997.
4. On the completion of investigation emanating from case: F.I.R. No, 53, dated 26.11.1997, registered at Investigation & Prosecution Cell, Customs House, Lahore, at the instance of Ehsan-ul-Haq, Deputy Superintendent Customs, the Custom Authorities found Haji Noor Mohammad Toor, Muhammad Yaqoob and their associates Rana Umar Farooq, Abdul Sattar Toor, Abdul Ghafoor and Abbas Ali of M/s. Moon International as also Asif Saleem and M/s. Atta Brothers, the Customs Clearing Agents, all appellants herein (excepting Asif Saleem and M/s. Atta Brothers) as concerned with the commission of offence within the meaning of section 2(s), 16 and 32 of the Customs Act, 1969 read with section 3(1) of the Import and Export (Control) Act, 1950, punishable under clause 1, 8, 9 and 14 of section 156(1) of the Customs Act, 1969, and section 15 and 178 thereof read with section 3(3) of the 1950 Act. The imported consignment was seized on the same day and the case was sent up for adjudication.
5.On the commencement of adjudication proceedings, the learned Collector of Customs, Lahore, issued show cause notice to all the aforesaid persons, including the importing and customs clearing firms, as also to Asif Saleem. They all represented by Mian Abdul Ghaffar Advocate contesting the notices, submitted their written reply. They asserted in their defence that the importing firm had clearly indicated in the bill of entry the gold, besides other goods, and it proved the bona fide of the importing firm in importing the gold which could be freely imported on payment of certain duties and taxes and the same could not be seized and confiscated.
6. The learned Collector of Customs, after affording the appellants an opportunity of being heard, by the impugned order, came to the conclusion that appellants had attempted to smuggle into Pakistan gold alongwith other goods, in which it stood concealed, and committed various offences and awarded them various punishments besides confiscating the gold alongwith other goods of the consignment. Aggrieved by that order, the appellants (who do not include Asif Saleem and M/s. Atta Brothers) have come up in appeal to this Tribunal.
7.Dr. A. Basit, the learned advocate for the appellants, has vehemently contended before us that:-- (i)there was no restriction on the import of gold in Pakistan and Haji Noor Muhammad Toor, appellant No, 2, who is the proprietor of M/s. Moon International, appellant No, 1, had lawfully imported it from Dobai where he had been carrying on his business and purchased it from his lawful earnings; (ii)he did not declare it in his airway bill, which is not a relevant document of customs, and kept it secret with other goods of his consignment for the purpose of security lest someone might pilfer it during the transit and on reaching Pakistan he promptly declared it in the bill of entry which was first cleared by the Custom Inspector and Deputy Superintendent Customs, Airport Lahore, on 19-11- 1997 but when his clients could not satisfy their illegal demand, they falsely implicated the importer, his firm, custom clearing agent, and host of other persons in the false case on trumped up charges and taking so-called adjudication proceedings, not only confiscated gold worth billions of rupees but also subjected them to unjustified heavy penalties; (iii)the bill of entry remained in the custody of the Customs Authorities throughout and Haji Noor Mohammad Toor appellant was supplied only its photocopy and there could be no occasion for him or any other appellant to make any interpolation or addition therein; (iv)that if his client, for any reason, was not entitled to import the gold into Pakistan, he may be allowed to take it back, to Dobai or to any other country; and (v)that with the import of gold the country shall stand benefited as the issuance of paper currency is backed by the quantity of gold and, in any case, the Government shall not suffer any monetary loss as no foreign exchange was involved.
The learned counsel also argued that the Import and Export (Control) Act, 1950, under which Import and Export (Control) Orders are issued every year, was a legislation for a limited duration which had expired long ago and all Orders being issued there under are without lawful authority.
However, he did not press this contention further when it was pointed out to him that with the amendment of long title, preamble and section 1(3), the said Act is now a continuing legislation for unlimited period.
8. The learned departmental representative, on the other hand, has tried to defend the impugned order by replying each and every contention of the appellant's counsel.
9. Before dealing with various contentions of the appellant's counsel, it may be mentioned here that this appeal was time-barred and the appellants had made an application for its condonation but it was not adverted to by the then learned Bench of the Tribunal and the appeal was admitted to regular hearing I and the delay stood automatically condoned.
10. After considering the above arguments and perusing the record in the light of the law on the subject, I am of the view that there is no substance in the above contentions of the appellants' counsel. Gold was, no doubt, importable at the relevant time under the Import Policy Order issued by the Federal Government under the 1950 Act but for its import a specific procedure had been prescribed. Under that procedure, certain companies satisfying some legal requirements were to be registered and authorised therefor by the Ministry of Commerce but the importing firm in this case did not follow this procedure and admittedly adopted a clandestine mode of bringing a huge quantity of gold into Pakistan. There was no justification for its proprietor to conceal the gold in the heads of insect killers and pan sets and to describe the consignment as insect killers in the airway bill of Lufthansa Airlines. No honest businessman shall adopt such underhand means in his business dealings. It shows his mala fide and mens rea which are necessary ingredients for committing any offence, including that of smuggling, and he cannot get out of its necessary consequences, even if he subsequently declared the gold in the bill of entry, which too is a moot point. There is, therefore, no force in the contention that he adopted this foul method to avoid its pilferage or theft during the air transit, rather, perhaps the disclosure of gold in the airway bill would have ensured its more safer transportation. In fact he deceived the airline and also wanted to hoodwink the Customs Authorities in Pakistan in order to avoid payment of taxes leviable on the gold but the latter happened to catch him red-handed and in order to wriggle out of his liability he has put forth many lame excuses.
11. As regards the bill of entry and its contents, the case of the appellants from the very inception has been that the importer had entered therein all the goods of the consignment, including 2640 tolas of gold, and the Customs Inspecting Staff also noted this fact in their report on its reverse and it was sufficient proof of his bona fide which washed away the charge of declaration and smuggling of gold against him. On the contrary, the position taken up by the Customs Authorities was that when Asif Saleem had presented the bill of entry to the Customs, there was no mention of gold therein, nor it could be detected by the Customs Inspecting Staff at the time of initial inspection and when on re-examination of the consignment the gold was detected in a concealed state and the importer apprehended prosecution, he subsequently got a fictitious entry of gold inserted in the bill of entry in order to make out a false defence, after deceitfully taking back that document from the custom officials which was never returned to them and during the investigation he supplied only the photocopy of the interpolated original bill of entry.
12.There is no doubt about the interpolation of bill of entry on its face sheet as also on its reverse relating to gold in question. Even the Hon'ble High Court, while dismissing the writ petition. of the appellants for quashing the F.I.R, could not help observing this fact. That observation was reproduced by the adjudicating officer in para 10 of the impugned order. In addition thereto, he gave numerous reasons in para 11 of the order under appeal in support of the conclusion that entry in the bill of entry submitted by or on behalf of the importer, regarding the import of gold and its examination, was fictitious and forged. I fully agree with his findings to the above extent but I do not agree with his views that these interpolations were made by importer Haji Noor Mohammad Toor (appellant No, 2) or by any of his co-appellants after taking back the original bill of entry from the inspecting officials of Customs, and returned only its photostat to them after making interpolations therein in order to make out a plausible defence of his bona fide import of gold.
13. It is an admitted position that bill of entry was presented to the Customs Authorities by Asif Saleem as agent of M/s. Moon International or that of its proprietor Haji Noor Mohammad Toor, appellant No, 2, and according to him, gold was not declared in the bill of entry. His statement, unrebutted as it was, clearly falsified the stand taken by his principal in his reply to the show cause notice' as also in the adjudication proceedings that he had declared the gold, besides other goods, in the bill of entry. Even otherwise Haji Noor Mohammad Toor's assertion to that effect was not in consonance with his previous conduct in Dobai where he took precautions to hide, the gold in other goods of the consignment and filled a wrong air bill, omitting the gold therefrom. Contrary to this dubious conduct, how he could suddenly become an honest man after reaching Pakistan and disclose his hidden gold in the bill of entry, knowing fully well that its detection might expose him to legal action, besides confiscation of gold worth billions of rupees for which he was taking so much trouble and risk. To this extent the version of the Inspection Staff of Custom is also acceptable that in the bill of entry gold had not been mentioned.
14.From this stage onward, the story takes a big turn. Now the Customs officials allege that after the detection of concealed gold on re-examination of the consignment, Haji Noor Mohammad Toor appellant or his partner Mohammad Yaqoob appellant, took back the bill of entry from them after they had written the report on its reverse regarding all other goods of the consignment, excepting gold, which by that time had not been detected despite first attempt of its examination, and to make out a false defence based on his bona fide he made interpolation there in about the presence of gold on its face sheet as also in the report on its reverse and retaining the original with him, he gave them only its copy. On the other hand, the appellants' version is that the presence of gold in the consignment, besides other articles, had been declared in the bill of entry and th customs officials noted this fact in their report on its reverse and when they (appellants) could not grease their palms, they alleged concealment of gold and implicated them in a false case. They denied having taken back the bill of entry from the customs officials and asserted that the original is still with them and they supplied its copy to them on demanded during investigation.
15.The above versions bring me to the determination of the questions as who made the interpolations an additions in the bill of entry, at which stage and for what purpose? I have already recorded my finding and to complete the sequence would like to reiterate that Haji Noor Mohammad Toor appellant, who is the main figure in this case, while submitting the bill of entry to the customs for the clearance of his consignment, did not enter therein the gold contained in consignment and made a declaration to the Customs Authorities in an attempt to smuggle gold into Pakistan without payment of duties and taxes leviable thereon and to avoid the application of other tax laws. As per contents of para 7 of the impugned order, Haji Noor Mohammad Toor had previously imported similar consignments and got cleared from airport Customs. This being so, he and his colleague were intimately known to the Airport Customs Staff and there was every possibility of a collusion and conspiracy between him and at least the Customs Inspecting Staff who despite clear orders of higher Customs Authorities did not carry out hundred per cent examination of his doubtful consignment which on re-examination revealed huge quantity of hidden gold therein. If the bill of entry, which did not indicate the presence of gold in the consignment, was returned to the importer or his agent by the Inspecting Staff of Customs after entering their report about other goods, as they allege, it was collusively returned to him to enable him to get his consignment released without any reference to the hidden gold, but before he or his agent could accomplish his unlawful mission, the gold was detected on re-examination of the consignment under the orders of higher Customs Authorities. The learned Adjudicating Officer, for the reasons best known to him, did not advert to the aspect of the matter as to why the Inspecting Staff consisting of Abdul Waheed Customs Inspector and Ehsan-ul-Haq, Deputy Superintendent had returned the bill of entry to the importer or his agent after making a laconic report on its reverse about other goods but omitting the concealed gold, despite orders of hundred per cent examination from higher Airport Customs Authorities, whose subsequent compliance in re- examination led to the recovery of the hidden gold.
16. I have carefully perused and examined the contents of the photocopy of the bill of entry, which I am competent to do under the law of evidence to form an opinion about the handwriting, and I am of the view that the interpolated or subsequently inserted entry therein at serial No, 4 in column 2 on the reverse, which reads "Germany gold 264 Pcs" appears to be in the same handwriting in which other contents of this column are and if C these other contents are in the handwriting of Abdul Waheed Customs Inspector, then the entry at serial No, 4 is also in his handwriting, countersigned by Ehsan-ul-Haq, Deputy Superintendent. This interpolation was made by him some time after the detection of the gold on re-examination in collusion with, and at the instance of the importer, in order to provide him with a false defence of bona .fide import and also to save his own skin from legal action, penal or disciplinary or both. Obviously the could not have taken so much risk without obtaining heavy tainted compensation therefor. The original interpolated bill of entry was either in his custody or in that of Haji Noor Mohammad Toor appellant or his agents or accomplices but during investigation nobody recovered it.
17.As regards the last two contentions of the appellants' counsel, neither his client (Appellant No, 2) can be allowed to take out the smuggled gold out of Pakistan, nor his gold could be used for backing paper currency in the country as, it was to go to his private pocket and not to the State Coffers.
18.To sum up, Haji Noor Mohammad Toor appellant, who alongwith Mohammad Yaqoob appellant represents the socalled firm M/s. Moon International appellant, which has fictitious address of Hall Road and has a doubtful existence, seems to have been habitually indulging in unlawful foreign trade in collusion and in association with some members of Airport Customs Staff like Abdul Waheed Customs Inspector and Ehsan-ul-Haq, Deputy Superintendent.
As per reported observation of a superior court "a smuggler is cought once in a blue moon", he and his accomplices in gold smuggling have been caught red-handed for the first time due to the vigilance of senior supervising officers of the Customs Department and no leniency can be shown to them. However, those appellants, whose role in the commission of this crime has not been indicated, much less proved, in the impugned order, though they may be remotely concerned therewith, need to be exonerated. They are, Abdul Sattar (appellant No, 4), Abdul Ghafoor (appellant No, 5), Abbas Ali (appellant No, 6) and Rana Umar Farooq (appellant No, 7).
19.In view of the above, the appeal of Abdul Sattar, Abdul Ghafoor, Abbas Ali and Rana Umar Farooq appellants is accepted and the impugned order to the extent of imposing personal penalty of Rs, 50000/- on each of them is set aside. However, the impugned order, so far as it relates to the outright confiscation of all goods, including 2640 tolas of seized gold, and imposition of personal penalty of Rs, 500,000/- on Haji Noor Mohammad Toor (appellant No, 2) and Mohammad Yaqoob (appellant No, 3) each, shall remain intact and their appeal alongwith that of M/s. Moon International (appellant No, 1) is dismissed in toto.