' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- This appeal under section 196 of the Customs Act, 1969 is directed against the order, dated 3-10-2000 in Appeal No,789 of 1998 by the Customs, Excise and Sales Tax Appellate Tribunal Karachi Bench.
2. Briefly stated the relevant facts giving rise to this appeal are that the appellant booked 260 bags of betel-nuts by Train from Quetta to Karachi. The Pakistan Coast Guards received an information that the betel-nuts comprised smuggled goods, and therefore, intercepted the same when it reached at Karachi City Railway Station and seized the same. Before seizing of the goods a notice under section 163 of the Customs Act, 1969 was handed over to the Station Master. The goods were seized under section 168 of the Customs Act and a notice under section 171 for violation of section 2
(s) and section 16 of the Customs Act. Intimating that the act was punishable under section 161(1), 168 and 89 of the Customs Act, was also pasted. The alleged smuggled betel-bunts were examined and found to be worth Rs,619,200.
3. According to the respondent, import of these goods is restricted under Federal Government Notification S.R.O.599(I)/91, dated 1-7-1991 issued under section 3(1) of the Import and Export (Control) Act, 1950, except on production of import authorization.
4. During the course of adjudication, the appellant took plea that the goods so seized were not smuggled one but were lawfully imported by him in the year 1994. The Bill of Entry filed In the year 1994 was also produced in support of the contention. The Adjudicating Authority got the goods examined physically by Association of Pakistan Commodity Traders and vide report, dated 25-6- 1998, they reported that the betel-nuts pertained to the crop of 1997, and therefore, the Bill of Entry, dated 6-11-1994 produced by the appellant does not cover the same. It was held that the Bill of Entry produced by the appellant was not related to the seized goods. The Adjudicating Authority confiscated the goods and the appellant preferred appeal before the Collector of Customs (Appeals) who directed to release the betel-nuts against payment of redemption fine equal to 50% of the value thereof in addition to duty and taxes leviable thereon.
5. The appellant still dissatisfied preferred appeal before the Customs, Excise and Sales Tax Appellate Tribunal Karachi Bench (hereinafter referred to as the Appellate Tribunal). It was contended before the appellate Tribunal that the Adjudicating Authority did not afford opportunity to cross-examine the witnesses who allegedly claimed the betel-nuts to be smuggled. It was further contended that the Adjudicating Authority had no material to prove that the betel-nuts so seized were smuggled. It was pleaded that the Bill of Entry produced by the appellant was duly verified, and therefore, there was no justification for confiscation of the goods. It was also pleaded that after production of the Bill of Entry, the burden was on the seizing agency to prove that the betel-nuts were smuggled. Another plea was taken by the appellant that in the absence of any evidence on record the seizure of the goods and confiscation thereof was violative of the basic principle of the law. The main contention was that there was no restriction on sale of imported betel-nuts in any prescribed manner and the betel-nuts were duly covered under the Bill of Entry.
With the production of Bill of Entry, the appellant discharged the onus of proof and the prosecution failed to come out with any evidence to rebut the claim. The existence of Pakistan Commodity Traders Association was also denied and it was contended that it was figment of imagination.
6. The learned members of the Appellate Tribunal, heard the representative of Pakistan Commodity Traders Association also, who confirmed that, to the best of their knowledge and experience the sample of betel-nuts examined by them was of good quality and appeared to be of crop 1997 and was of Indonesian origin. The Appellate Tribunal did not accept the contention that the confiscated goods were covered by the old Bill of Entry representing clearance of consignment from Chamman Custom House. It was observed that, it was normal modus operandi adopted by the smugglers of betel-nuts to justify movement of betel nuts smuggled originally imported for Afghan Transit but meant for Pakistani market, as the market for the same does not exist in Afghanistan. It was held that the circumstances, in this case were not different from similar other cases. It was further observed that the person claiming to be the owner of goods was declared absconder in another case of seizure/ confiscation in Hyderabad Collectorate in which an attempt to smuggle and justify the movement claiming legitimate import against many years old Bill of Entry failed and the goods were confiscated. It was held that in this case very lenient view was taken by the Customs officials in respect of the offence committed by the appellant as the confiscated goods were allowed to be released against nominal redemption fine.
7. With the above observations/findings, the appeal was dismissed.
8. The appellant still feeling aggrieved, preferred this appeal before us.
9. We have heard Mr. Sohail Muzaffar, learned counsel for the appellant and Syed Ziauddin Nasir, learned Standing Counsel for the respondent.
10. The sole point pressed by the learned counsel for the appellant before us is that the goods under consideration were covered by the Bill of Entry which was duly verified by the concerned Collectorate and, therefore, the onus was on the seizing agency to establish that the betel-nuts were smuggled. He has contended that the seizing agency has failed to establish that the betel- nuts so seized were in fact smuggled and were not imported as claimed by the appellant. He has maintained that the Appellate Tribunal was not justified in placing reliance on the certificate issued by the Pakistan Commodity Traders Association, as the appellant was not afforded any opportunity to cross-examine the person who examined the betel-nuts in question and certified it to be pertaining to the crop of 1997. We asked specifically if the appellant, in addition to the production of Bill of Entry, which was filed in the year 1994, produced any evidence to establish that the confiscated betel-nuts were the same which were imported under the Bill of Entry filed in the year 1994. It was pointed out that the Bill of Entry under which the confiscated goods are alleged to have been imported pertained to the year 1994 and the goods under consideration were seized in the year 1998. There is a gap of four years in between the date of Bill of Entry and the date of seizure. The learned counsel was asked if any evidence was produced as to where the betel-nuts were stored after its alleged import in the year 1994 and whether any accounts were maintained in respect of the imported goods. The learned counsel stated that no such evidence was produced by the appellant. We then specifically asked the learned counsel whether there was any material on record to establish the nexus between the confiscated goods and the Bill of Entry from which it could be held that the confiscated goods were lawfully imported and were duty paid having been covered under the Bill of Entry. The learned counsel for the appellant frankly conceded that except the production of Bill of Entry, no other evidence/material was prothiced by the appellant to establish the nexus between the confiscated goods and the Bill of Entry filed in the year 1994. He, however, submitted that once the Bill of Entry was produced by the appellant, it amounted to the discharge of burden by the appellant and shifting of the same to the prosecution to establish that the seized/confiscated goods were smuggled one.
11. On the other hand, the learned Standing Counsel, submitted that the burden to establish that the seized/confiscated goods were not smuggled one, was on the appellant and the said onus was not discharged as held by the Appellate Tribunal and consequently, the Appellate Tribunal has rightly dismissed the appeal.
12. We have carefully, considered the contentions raised by the learned Advocates for the parties.
We have perused the impugned orders and the material available on record. We are persuaded to agree with the submission of Mr. Sohail Muzaffar, on the point that the Adjudicating Authority and the Appellate Authorities including the Appellate Tribunal could not place any reliance on the certificate issued by the Pakistan Commodity Traders Association and the Appellate Tribunal has misdirected in hearing the representative of the said association and place reliance thereon. Mr. Sohail Muzaffar, has rightly placed reliance on CGO 10/1974 issued by the C.B.R. Which reads as follows:-- "(i) It is becoming very common for the Adjudicating Officer not to examine the prosecution witnesses in the presence of parties concerned and not to keep a record of the proceeding. Time after time it has been held by the High Court and the Supreme Court that if the party concerned is not allowed to cross-examine the witnesses or to produce his defence, it offends the principle of natural justice. The Supreme Court in Sardar Ali's case in PLD 1959 (SC) p.25 had held that if a witness is not examined by the Adjudicating Officer in presence of the party concerned, it violates the principles of natural justice and that evidence cannot be taken into consideration.
(ii) Adjudication proceedings should be proper judicial proceedings and a diary should be kept of each happening and the order passed from day to day should be recorded.
(iii) Even if the party has not summoned any witness, it is the duty of the prosecution to produce all the witnesses and documents before the Adjudicating Officer in presence of the party concerned.
Without this the proper hearing is not given and there is a violation of principle of natural justice."
13. The above guidelines given by the C.B.R. At the instance of D.A.-G. Contained the established principles of the natural justice based on very sound principles of the administration of justice. The Adjudicating Authority was bound to observe and follow the instructions of the C.B.R. In pursuance of the powers vested in C.B.R. Under section ,223 of the Customs Act, 1969.
14. However, the acceptance of contention of Mr. Sohail Muzaffar, on the point of non-acceptance of the evidence furnished by Pakistan Commodity Traders Association, for want of proper opportunity to the appellant, is not the end of matter. The moot point for consideration is, as to, on whom lies the onus of proof to establish that the goods were the smuggled goods or not. The general principles of law in this regard are contained in Articles 117," 118, 119 and 122 of the Qanun-e- Shahadat Order, 1984, which read as follows:-- "117. Burden of proof.--- (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
118. On whom burden of proof lies.--- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
119. Burden of proof as to particular fact.--- The burden of proof as to any particular fact lies on that persons who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
122. Burden of proving fact especially within knowledge.--- When any fact is especially within the knowledge of any person the burden of proving that fact is upon him."
15. However, there is a special provision contained in section 187 of the Customs Act, 1969, which is as follows:-- "187. Burden of proof as to lawful authority, etc.--- When any person is alleged to have committed an offence under this Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force the burden of proving that he had such authority, permit licence or other document shall lie on him."
16. It is established principle of law that special provision overrides the general provision and the special enactment prevails over the general enactment. The Qanun-e-Shahadat Order, 1984 is a general law and Customs Act, 1969, is a special law, therefore, the provisions contained in section 187 of the Customs Act, 1969, shall prevail over and override the general provisions contained in the Qanun-e-Shahadat Order, 1984.
17. A perusal of section 187 of the Customs Act, 1969, shows that when a person is found in possession of any goods, the burden of proof is cast upon him to show that he was holding such goods under lawful authority, permit or licence. At this juncture, we would like to clarify that if there is any question whether a person was in possession of any goods or not, the burden to prove this fact is on the Customs Authorities and it is not the burden of a person alleged to have possessed some contraband goods to establish that he was not possessing the said goods. However, once the possession of goods by any person is established then the burden of proof is cast upon him to show that he had the lawful authority to possess the same. The question of burden of proof came for consideration before a Division Bench of this Court in the case of Muhammad Yousuf v.
Assistant Collector of Customs, Karachi PLD 1970 Kar.
97. The relevant facts in the cited case :.Were that certain contraband cigarettes and betel-nuts were confiscated under the provisions of Sea Customs Act, 1878 read with provisions of Import and Export (Control) Act, 1950. The petitioner was found in possession of large quantity of betel-nuts of foreign origin and as a zesult of search 528 bags of betel-nuts were seized. It was the case of petitioner that they had purchased the goods in question from a firm of Karachi who had lawfully imported them into the country and that a large quantity of betel-nuts of foreign origin, were open auctioned at Karachi by the Sea Customs Authorities and the petitioner purchased some of these goods in the open market against regular bills, invoices, cash memos. And receipts. On the basis of this plea it was contended that the seizure of betel-buts in May, 1966 was without lawful authority.
The petitioner could not succeed before the Departmental Authorities and the C.B.R. The matter was ultimately brought before this Court in a Constitution petition. It was contended before this Court that the petitioner had produced cogent evidence before the Customs Authorities to the effect that he had acquired the goods lawfully and consequently, the impugned action could not be properly taken. The contention was not accepted by the Honourable Judges of the Division Bench of this Court. It was held as follows, and the petition was dismissed.
"Even otherwise the petitioner does not appear to have any case on merit. His contention before the respondents was that he had acquired a part of the goods from one Muhammad Arif, who had earlier purchased them in an auction at the City Court, Karachi and a part from bona fide passengers. In support of his contention he produced various receipts before the respondents which on scrutiny were found not to cover a part of the goods. The further conclusion of the respondents was that the petitioner had failed to produce any satisfactory evidence to show that he had purchased a part of the goods from bona fide passengers. They also disbelieved the petitioner that he had purchased some of the goods from one Muhammad Arif, as, according to them, the goods seized from the petitioner were altogether fresh while the goods which were auctioned at the City Court about three and a half months earlier were from an old stock. These findings of the respondents, based as they are on proper evidence, were not open to interference by us while exercising jurisdiction. Under Article 98 of the Constitution, notwithstanding the fact that on reappraisal of the evidence on record we might have come to a different conclusion.
' Mr. Muzaffar Hassan, also faintly argued that the respondents have wrongly placed the onus on the petitioner to prove that the goods had not been imported into the country in contravention of the notification under section 3(3) of the Import Export Act, 1950. We find no force in this contention either it is an admitted position that the goods were of foreign origin and their import into the country was prohibited. Therefore, according to section 177-A of the Sea Customs Act, it was the burden of . The petitioner to prove that goods in question had not been imported into the country unlawfully and further that no act was committed in relation to those goods so as to defraud the Government of any duty payable .On. Them."
18. Section 177-A of the Sea Customs Act, 1878, corresponds to section 156(2) of the Customs Act, 1969, which reads as under:-- "156(2) Where any goods specified in clause(s) of section 2 or in a notification issued thereunder are seized under this Act in the reasonable belief that an act to defraud the Government of any duty payable thereon or to evade any prohibition or restriction for the time being in force by or under this Act has been committed in respect of such goods, or that there is intent to commit such an act, the burden of proving that no such act has been committed or there was no such intent shall be on the person from whose possession the goods were seized."
19. There are various points of similarities in the cited judgment and the facts of the present case.
We. Therefore, respectfully following the dictum laid down in the cited judgment hold that the provisions contained in section 187 of the Customs Act, clearly cast burden on the appellant to show that the confiscated goods were held by him under lawful authority. In the cited case betel- nuts were purchased in open auction in the years 1964 and 65 and the plea that betel-nuts confiscated in the year 1966 were covered by the said purchase was not accepted for the reason that the petitioner in the cited case was not able to establish by producing evidence that the confiscated goods were covered by the invoices through which the betel-nuts were purchased in the open auction. Likewise, in the present case there is a gap of four years in the filing of Bill of Entry on which the appellant placed reliance and the confiscation of goods, therefore, burden heavily lay on the appellant to prove that the seized/confiscated betel-nuts were covered by the Bill of Entry filed in the year 1994. As it is admitted by the learned counsel for the appellant that no such evidence was produced by the appellant, therefore, it is held that the appellant failed to discharge the burden cast upon him under section 187 of the Customs Act and consequently, the appellate Tribunal rightly disbelieved the contention of the appellant to the effect that the seized goods were covered by Bill of Entry which was filed in the year 1994. The impugned finding of the Appellate Tribunal is in consonance with the law and requires no interference.
20. We, would further like to point out that under section 211 of the Customs Act, 1969, the importers and exporters are required to maintain accounts in respect of the goods imported or exported, except the goods imported exported for bona fide private or personal purposes. The appellant has not produced at any stage any accounts or stock register of the goods allegedly imported under the Bill of Entry filed in the year 1994 and thus the appellant has miserably failed to establish that the seized/confiscated goods were covered by the Bill of Entry, filed in the year, 1994.
21. For the foregoing reasons, the appeal stands dismissed.