JUDGMENT MIAN ABDUL QAYYUM, MEMBER (JUDICIAL).-- This appeal Is directed against the Order-in-Original No. 04/2001, dated 3.12.2001 (dispatched on 10.12.2001) passed by the learned Deputy Collector, Customs Railway Station, Lahore.
2. The facts leading to this appeal are that the appellant imported a consignment from India comprising one box, gross weight 62 Kgs and declared the same to be 1 unit "Electrical Current" and sought its clearance under HS Code 2716.0 vide bill of entry No. 6592, dated 7.9.2001. The physical examination of the goods showed that the consignment consisted of "Electrical Energy Optimizer" which was not importable from India under the current Import Trade and Procedures Order. The importer was accordingly issued notice dated 9.11.2001 to explain as to why the goods may not be
(sic) penal action should not be taken against it under clause 9 of Section 156( 1) of the Customs Act, 1969 for violating the provisions of Section 3( 1) of the Imports and Exports Control Act, 1950 read with Section 16 of the Customs Act, 1969. The appellant contested the show-cause notice and submitted a written reply wherein it was averred that the goods were imported from India under the same. HS Code and no objection was raised at the time of import. The learned Adjudicating Officer however, over-ruled the reply on the ground that since the goods on an examination were found to be "Electrical Energy Optimizer" which absorbs all the surges when installed in mainline was correctly classifiable under H.S. Code No. 8535.4000, import of which was not allowed from India under the current Import Trader SC Procedures Order. Resultantly, consignment was confiscated " under clause 9 of sub-section (1) of Section 156 of the Customs Act, 1969 for violating the provisions of Section 3(1) of the Imports and Exports Control Act, 1950 read with Section I 6 of the Customs Act, 1969.
3. Muhammad Abdullah, representative of the appellant requested for release of the confiscated goods on payment of leviable duty and taxes plus moderate amount of redemption fine.
4. The learned D.R. Has resisted this request on the strength of decision by the Hon'ble Lahore High Court, Lahore in Customs Appeal No. 4/98, decided on 19.9.2001.
5. The relevant portion of the judgment of the Lahore ' High Court, Lahore dealing with the jurisdiction of the Tribunal to allow an option u/S. 181 for release of the goods where the same has been refused by the learned Adjudicating Officer is contained in para 12 at page 11 of the judgment which is as under: "A question may arise here if the provisos to Section 181 make part of the jurisdiction of the Tribunal conferred u/S. 194-B as redundant. The answer is - no. The Tribunal will still have the jurisdiction to rule if the goods were liable to be confiscated for the reasons given by the appropriate officer.
However, once the Tribunal comes to the conclusion that the goods were liable to be confiscated, it cannot interfere with the impugned order of the appropriate officer made in the light of an order by the Board specifying the goods or class of goods where option of payment of fine is not to be given, in other words where the appropriate officer has refused to allow option in view of an order of the Board made under the provisos, the Tribunal cannot allow that option. In same token where an appropriate officer imposes fine as fixed by the C.B.R, the Tribunal cannot reduce the same any further, It is so for the reason that the order of the Board made in this regard has the force of the statute. As said above even this Court u/S. 196 of the Act will not allow a relief which is opposed to the order of the Board though on Constitutional side that order may very well be Struck down for any conceivable legal infirmity."
6. It is no doubt true that earlier we were allowing release of confiscated goods on payment of leviable duty and taxes plus moderate amount of redemption fine but we have stopped exercising this discretion in view of the judgment of the Honorables Lahore High Court, Lahore relied upon by the learned D.R. Following the said judgment, we are unable to accept the request made by the representative of the appellant and dismiss the appeal because in our opinion, the order of confiscation has been legally passed as the imported Electrical Energy Optimizer is on the negative list of the current Import Trade and Procedures Order.