' NASEEM SIKANDAR, J.--- The appellant was apprehended on his arrival by air on 7-10-1995 and was found in possession of 78 biscuits of gold. On his failure to prove their lawful import, the metal was seized alongwith the gadgets used to conceal it. Accordingly, he was charged with violation of section 8 of the Foreign Exchange Regulation Act, 1947, section 3(1) of the Imports and Exports (Control) Act 1950) and sections 2(s), 16 and 139 of the Customs Act, 1969.
2. The Adjudicating Authority on 15-9-1996 directed outright confiscation of the gold as well as the electricity gadgets in which it was concealed. The learned Tribunal by way of the impugned order, dated 31-7-1997 refused to interfere with the order in original .Assailed before it.
3. According to the appellant following questions of law have arisen out of the order of the Tribunal:--
(a) Whether in order to constitute offence of smuggling punishable under clause (8) of subsection
(1) of section 156 of Customs Act, 1969, importation or exportation of goods should not be in breach of any restriction or prohibition and whether the goods import of which is only subject to certain procedure would fall within the ambit of restricted or prohibited goods?
(b) Whether first part of section 2(s) of Customs Act, 1969 should not control its subsequent parts and meaning would not obviously be that only bringing into or taking out of Pakistan those goods would constitute smuggling, importation or exportation of which. Is prohibited or restricted and whereby duties and taxes are evaded and whether the goods import of which is only subject to certain condition or procedure would constitute such offence?
(c) Whether the gold falling under P.C.T. Heading 7108 attracting Customs Duty at 15%, sales tax at 15% and income-tax at 5% at relevant time being not included in Chapter 4 containing negative list and appearing of serial number 10 of section 1 of Chapter 3 containing conditions for certain import of Import Policy Order 1995-96 (S.R.O. 606(1)/95, dated 4-7-1995 shall not be deemed to be freely importable item?
(d) Whether misdeclaration of description of goods or non-declaration of goods, import of which is neither prohibited nor restricted under the relevant Import Policy Order would not only attract section 32 and if brought in baggage section 139 and whether person making such misdeclaration or non-declaration would not be liable to punishment under clauses (14) and (70) of subsection (1) of section 156 of Customs Act, 1969 and whether application of clause (8) of said section would not be illegal and unwarranted under the Customs Act, 1969?
(e) Whether respondent No,1 was not required to give an option to the appellant to pay in lieu of confiscation of the goods such fine as he deemed fit while passing order for confiscation of goods under section 181 of Customs Act, 1969 which says that whenever order for confiscation of goods is passed, officer passing such order may give owner of goods an option to pay fine in lieu of confiscation thereof?
(f) Whether extending option to pay fine in lieu of confiscation in respect of gold or gold ornaments besides leviable duties and taxes to certain person and refusing such concession to appellant by respondent No,1 or as the case may be respondent No,2 would not be discrimination with the appellant and whether on the basis of such precedents, appellant was also not entitled to redeem his goods on payment of fine, duties and taxes?
(g) Whether the decision on the abovementioned legal question are was not necessary for just; proper and legal decision of the case and whether non-determination of the material points has not resulted in miscarriage of justice?
4. After hearing the learned counsel for the parties, we are of the , view that none of the aforesaid questions arise out of the order of the Tribunal. The observations in para.5 of the impugned order are very much clear in this regard. A question of law can be said to have arisen out of the order of the Tribunal only if it was placed before the Tribunal and was ruled upon by them. None of the aforesaid issues appear to have been raised before the Tribunal. In absence of any evidence to the contrary even if these points were taken as grounds of appeal it shall be presumed that these were not as such argued or pressed. Before the Tribunal most of the submissions pertained to the factual aspect of the case. The Tribunal disagreed with the appellant that the gold being importable item, at the relevant time, its outright confiscation was illegal. The Tribunal noted that though the import policy order for the year, 1995-96 allowed import of gold but also took into consideration that the permission to import was allowable only to Companies under a licence from the Federal Government. These findings are not open to exception. Also we will not agree with the learned counsel for the appellant that in accordance with the provisions of section 181 of the Customs Act, 1969, the revenue was required to give option to pay fine in lieu of the goods confiscated. A simple reading of the provision makes it clear that allowing of an option is discretionary with the revenue and that exercise of discretion necessarily depends upon the, facts of every case. The learned Tribunal found and we will agree that an option cannot be made available in every case nor claimed as a right.
5. Learned counsel for the appellant has also attempted to make out a case that in similar situations the Collector of Customs and at times even the Tribunal had directed release of the gold on payment of duties and fine etc. As noted earlier the exercise of discretion to give an option depends upon facts of every case and, therefore, it cannot be claimed as a matter of right.
5. That being so this further appeal shall be dismissed without any order as to costs.