MR. S. M. KAZIMI, MEMBER (TECHNICAL).-(1). This judgment disposes of the 30 identical appeals: 10 each filed by M/s. Universal Plastic Industries (Pvt.) Ltd. (appellant No. 1), M/s. Nowshera Gadoon Goods Transport Co. (appellant No. 2 and M/s. Ghausia Impex (Pvt.) Ltd. (CHAL No. 1722 and appellant No. 3) against the consolidated Order-in-Original No. 41/2001, dated 30.11.2000 (dispatched on 14.04.2001) passed by the leamed Collector (Adjudication-I), Custom House, Karachi. These 30 appeals were originally filed in the Karachi Bench of the Tribunal and have been received in this Bench by transfer under the orders of the Worthy Chairman of Tribunal.
2. Briefly, the facts of the case are that in pursuance of an information, the officers of the Directorate General of Intelligence & Investigations of Customs & Central Excise (hereinafter called "DCI") constituted a team of officers of the DCI for keeping surveillance and discreet watch on the activities of Mr. Moeen Sethi of M/s. Universal Plastic Industries (Pvt.), Mr. Shabhir of M/s. Ghausia Impex (CHAL No. 1722) and Mr. Quddoos, Dilawar and Ch. Lai Muhammad transporters of M/s. Nowshera Gadoon Goods Transport Co. And Ajaz Mom and Saleem, local traders/brokers of Plastic Molding Compound (hereinafter called P.M.C.). It transpired that the PMC consignment which was allowed into-bond clearance by Karachi Custom House (hereinafter called KCH) under the Safe Transportation Scheme for landing at the site of PWL No. Ll/90(Pt) of the appellant No.1 at Gadoon had instead been fraudulently unloaded at the unbounded private Godown of Babar Brothers, S.I.T.E. Karachi, and stored there in the name of a broker of Jodia Bazar in breach of the procedure prescribed in C.G.O. No. 10/91, dated 23.09.1991. When asked to produce documents of lawful import, the said broker failed to do so and disclosed that he had arranged storage of the consignment in that godown on the instructions of Mr. Moeen Sethi of M/s. Universal Plastic Industries (Pvt.) Ltd.
(hereinafter called UPI) for its sale (claiming it to be duty-paid) in the local market as the Government had withdrawn the concession for industries in Gadoon. The said Broker also identified the transporters and the clearing agents, nominated by Mr. Sethi, for transportation of the goods.
Shabhir Ahmad, from the clearing agency, identified the transporters and stated that the clearance charges were paid by the Brokers and the goods were handed over to the transporters for transmission to the private bonded warehouse of M/s. UPI at Gadoon. Ch. Lai and Quddoos of the Transport Co. Disclosed that they deposited the consignment in the private godown of M/s. Baber Brothers at Karachi under instructions from Mr. Moeen Sethi of appellant No. 1 on the basis of the NOC furnished by the Broker. Investigations also revealed that the truck number on the gate- passes of KPX and those on record of M/s. Babar Bros, were the same. However on scrutiny of Bond Ledger of UPI's warehouse No. PWL-11/90 at Gadoon,-the investigating officers found that arrival of the consignment was duly entered in the Bond Register but it was not physically available in the said Gadoon warehouse. In case relating to S.S. Eagle Bay's I.G.M. No. 2263/94 dated 24.12.1994, index No. 26, it revealed that 1500 bags were loaded on 5 trucks on 09.01.1995 and 2376 bags were loaded on 11.01.1995 but instead of those 3876 bags actually removed from KPT and transported to Gadoon, 4,000 bags (as per the declared quantity on the bill of entry) were shown as received in PWL No. 11/90 on 12.01.1995 i.e. Only one to 3 days from the date of transportation from Karachi. As against this, of the 3875 bags removed from the port, 3570 bags of the same description, grade, origin and brand were lying in the godown of Babar Brothers at Karachi while the remaining 305 bags had been sold by the Brokers. This showed that entries made in the Bond Register of PWL No. 11/90 at Gadoon were not reliable and that all these persons and enterprises, as mentioned in the FIR/Seizure Report/show cause notice had actively concerned themselves in the commitment of the offence under sections 2(s), 86, 87, 89, 116, 157 and 178 of the Customs Act, 1969, punishable under clauses 1, 8, 49, 50, 51, 57, 82 and 89 of section 156(1) thereof besides the loss of customs duty, sales tax and advance incomes tax (amounts mentioned in the respective show cause notices).
On receipt of the Seizure Report from DCI, the Collector of Customs (Appraisement), Custom House, Karachi, issued notices to Mr. Moeen Sethi (of appellant No. 1), Mr. Ajaz Mom (Broker) of Karachi, Mr. Muhammad Jahangir (of appellant No. 3), Mr. Shabhir Ahmad (of appellant No. 3), Mr. Qadeer Khan (of appellant No. 2), Mr. Dilawar Khan (of appellant No. 2) requiring them to show cause why penal and confiscation action under the aforesaid provisions of law should not be taken against them and also why the evaded amount of customs duty, sales tax should not be recovered from M/s. UPI (appellant No. 1) and other concerned persons. On the creation of the Adjudication Collectorate, the case was transferred to the jurisdiction of Collector of Customs (Adjudication-I), Customs House, Karachi, who heard the parties and passed the impugned Order-in-Original No. 41/2001 holding that offence charged was established. He ordered encashment of the bank guarantee secured for the goods released against the Honourable High Court Orders dated 17.07.1995 passed in Writ Petition No. 611/95, C.M. No. 361/96. He also imposed a penalty of Rs. 10,000,000/- on the importer covering all the 10 consignments (i.e. The 10 Seizure Cases) and penalty of Rs. 100,000/- upon the Clearing agents, the transporters and godown owners, each. By the said impugned Order-in-Original No. 41/2001, the leamed Collector (Adjudication-I), Karachi, also disposed of the other identical 9 seizure cases (i.e. 10 cases in total) in which show cause notices No. SI/Misc/105/95-AIB to SI/Misc/114/95- AIB were issued by the Collector, Customs (Appraisement), Customs House, Karachi. Hence these 30 appeals.
3. During the course of hearing conducted before us, the leamed counsel for the appellants No.1, 2 and 3 stated that initially these were 11 cases of imported consignments and 11 show cause notices, C. No. SI/Misc/104/95-AIB to SI/Misc/114/95-AIB, were issued by the Collector, Customs (Appraisement), Custom House, Karachi to the 3 appellants in the said 11 cases. Out of the said 11 cases, one case in file No. SI/Misc/104/95-AIB was adjudicated by the Collector (Appraisement) himself vide his Order-in-Original No. 35/2000, dated'29.03.2000 whereby a penalty of Rs. 100,000/- was imposed upon the importers M/s. Universal Plastic Industries (Pvt.) Ltd. And the importer were required to pay duty and other allied taxes, as leviable, on the imported goods in that case at statutory rates. It was further stated that the adjudication order No. 35/2000 was appealed against in the Karachi Bench of this Tribunal, which decided this appeal No. 201/2000 on 24.05.2000 and set aside the said Order-in-Original No. 35/2000. The leamed counsel also invited attention to the Collector, Customs (Appraisement), Custom House, Karachi's letter C. No. SI/Misc/104/95-AIB dated 14.03.2001 addressed to the Central Board of Revenue in response to the letter's C. No. l(30)S&R- 2/90-B(Pt) dated 02.01.2001 in forming that no appeal against the Tribunal's aforesaid order dated 24.05.2000 in Appeal Case No. 201/2000 was filed by the Collectorate in the Honourable Sindh High Court as no point of law was involved. The Collector also informed the Central Board of Revenue that filing of appeal against the order by the Tribunal would have been an exercise in futility. The leamed counsel argued that these 10 cases may also be disposed in the light of the Tribunal (Karachi Bench)'s aforesaid judgment dated 24.05.2000 in Appeal Case No. 201/2000 as it equally applies to the 11 cases made by the DCI in a series. After making this preliminary submission, the leamed counsel stated that appellant No. 1 is a unit set up in Gadoon Amazia which availed of the benefit of SRO 517(I)/89 and a quota of 25% of its requirement of raw materials was allowed as exempt under the said notification. He stated that for the duty-free storage of these imported exempt raw materials, they had obtained a private warehouse licence No. 11/90 at Gadoon, duly licenced by the Collector of Customs, Peshawar. He further stated that the balance of their requirements of raw material are either imported or procured from the local market anywhere in the country and stored outside the said PWL No. 11/90 before being used in production of goods. He stated that they also obtained the requisite central excise license and maintained all prescribed excise records like RG-1, RG-2, AR-1, G.P. And obtained Consumption Certificate (after producing goods out of these raw materials) in compliance of the requirements of the said SRO 517(I)/89, the form S and the Central Excise Laws/Rules applicable to factories obtaining raw-materials at exempt/concessionary rates under authorization of a notification. He stated that the entire allegation is that the goods seized from the premises of godown of Babar Brothers, Karachi, are the goods which were cleared at Karachi by the importer (UPI) against in- bond bills of entry through their clearing agent (appellant No. 3) and allowed to be transported to PWL No. 11/90 of UPI at Gadoon through the transporters (appellant No. 2) under Safe Transportation Scheme of C.G.O. No. 10/91. He vehemently denied this allegation and stated that the consignments in all these 10 cases were duly transported under the safe transportation scheme of Board's C.G.O. No. 10/91 against respective into-bond bills of entry and were duly warehoused in the appellant's private bonded warehouse No. PWL-11/90 at Gadoon under customs supervision of the officers of Peshawar Customs Collectorate. He invited attention to the various provisions of the said C.G.O. No. 10/91 which allow safe transportation of bonded goods to the up- country bonded warehouses through private and public transport carriers both under insurance guarantees (returnable on safe receipt of the goods in the up-country bonded warehouse). He claimed that the Customs Officer incharge PWL-11/90 at Gadoon duly received these bonded (safe-transported) goods and entered the same in the warehouse register. He further claimed that the detecting officers have themselves checked the safe arrival of these into-bonded goods in the appellant's warehouse No. PWL-11/90 and its due entry in the warehouse registers and records for warehousing, ex- bonding, excise RG-II, AR-1, G.P., Bond register, issue of consumption certificates and discharge of bonds. He stated that the officers of DCI have seized all these records of the PWL-11/90. He invited attention to the Collector of Customs (Adjudication-1), Karachi's detailed letter C. No. SI/Misc/105/45, dated 10.10.2000 addressed to the Collector of Customs, Peshawar, and the Assistant Collector, Gadoon Amazia, detailed para-wise report thereon under his C. No. IV-CE(101)72/90/S/1241, dated 27.12.2000 and argued that the Collector (Adjudication) has not taken pains to examine this reply of the Collector of Customs, Peshawar, and has, instead acted mechanically on the report of the seizing officers who still do not give reasons as to whether they did/did not interrogate the concerned Customs Officers at Peshawar and also as to why they did not charge Peshawar Customs Officers for collusion if they suspect or challenge these entries by the Peshawar colleagues. He argued that the detecting officers want their version to be accepted by the adjudicating/appellate authority without verifying the truth from record and circumstances of the case. As regards the allegation that some of the said 10 consignments were warehoused in PWL-11/90 at Gadoon within 2 to 3 days of its delivery by KPT, the leamed counsel stated that it all depends on the transporters and transport arrangement. He argued that there is no fixed period for transportation from Karachi to Gadoon. He invited attention to the Table at page 12 of the impugned order where the time elapsed for such transportation ranged between 2 days to 10 days in these 9 consignments. He argued that had they not actually transported these goods, the time of transportation would have been shown almost uniform in those 9 cases instead of the large variation of the time between 2 days to 10 days. He stated that appellant No. 1 has no control over the transporters, his machines and drivers who take time as per the road conditions and vehicle conditions besides several other factors. He stated that the appellant No. 1 has committed no breach of C.G.O. 10/91 and had also committed no breach of any provision of law/rules if the transport took varying times in transportation from Karachi to Gadoon for the various consignments. As regards the goods seized from the godown of M/s. Babar Brothers at Karachi, he claimed that these belonged to appellant No. 1 which were purchased from the local market to supplement their requirements in the factory at Gadoon as the 25% quota imported under SRO 517(I)/87 did not suffice their needs. He stated that the raid on the premises of M/s. Babar Brothers and the consequent search, seizure and arrest were unlawful because of the clear and unambiguous provisions of sections 161, 162 and 163 of the Customs Act, 1969, read with Customs General Order No. 9/81. He emphasized that the aforesaid provisions of the law are mandatory in nature. He further argued that when surveillance was made in pursuance of an information, as claimed by DCI officers, nothing prevented them from obtaining search warrant of the premises of M/s. Babar Brothers, Karachi, which is neither a customs area nor a customs bonded place. As regards 'the statements recorded by the officers of DCI at Karachi, the leamed counsel pointed out that these statements were recorded under section 161 of Cr. P.C. And has limited use for the prosecution. He alleged that these statements are fabricated ones and obtained under threat and duress and the adjudicating officer has unnecessarily relied upon the said statements without affording the appellant opportunity to cross-examine the witnesses. He stated that had the appellant master-minded that event with the collusion of the transporters or the clearing agent or the godown owner at Karachi, why should he allow the vehicle Nos. (which had actually transported the goods from KPT to Godoon warehouse) to be recorded in the godown register at Karachi. He alleged that the DCI officers cooked up these entries and manipulated these statements and documents at the back of the appellant No. 1 to suit the interest of the seizing agency. He further stated that the seizure made and statements recorded by Rana Zahid, Examiner of DCI was totally improper, un-authorized and unlawful as the Examiners/Examining Officers of DCI are not empowered to exercise the functions under SRO 388(I)/82, dated 22.04.1982. He concluded that the appellant No. 1 has duly accounted for the goods imported by them under the concessionary notification No. SRO 517(I)/87, has committed no breach of safe transportation scheme, has duly warehoused those goods in their PWL No. 11/90 at Gadoon, has ex-bonded those goods under due customs supervision with due entries in the prescribed RG-2, AR-1, G.P. Record, has used these in the manufacture of goods in their Gadoon factory with due entries in the prescribed RG-1, AR-1, G.P., and has been issued consumption certificate by the Central Excise Officers and their bonds have been duly discharged. He further stated that by taking no action and/or proposing no action against the Customs Officers and Central Excise Officers at Peshawar, the DCI officers and the adjudicating officers accept their bona fide in dealing with the goods and the documents of appellant No. 1 and at the same time, they want to penalize appellant No. 1 in a highhanded manner for their ulterior motives. He also argued that the order of the Collector (Adjudication-I) is mechanical and defective in nature as he has not applied his mind properly and has decided the case in 2 short paragraphs (No. 23 and 24) of his Order-in- Original No. 41/2001 without discussing the issues highlighted by respondents and placing total reliance on the submissions of DCI and ignoring the prosecutions defiances of sections 161, 162 and 163 of the Customs Act, 1969. He stated that while allegations were made against broker Ijaz Mom and he was served with-the show cause notice, no action has been taken against him in the impugned Order-in-Original No. 41/2001 for reasons best known to the prosecution and the adjudicating officer and, instead, penalty of Rs. 100,000/- has been imposed on the Godown (M/s. Babar Brothers, Karachi) owner in the said impugned order without serving copies of the said show cause notice or the impugned order on the said godown owner. He also pointed out that the adjudicating officer heard the parties last and reserved the judgment on 30.08.2000 and issued the impugned Order-in-Original No. 41/2001 on 14.04.2001 by stating that the date of judgment was 30.11.2000. He argued that no reason is given for the delay of 4V2 months (from 30.11.2000 to 14.04.2001) in issuance of the judgment or the delay of 7V2 months (from 30.08.2000 to 14.04.2001) in announcing the judgment. He alleged that date of the judgment (stated as 30.11.2000) is not correct and a manipulated one to avoid the policy directions and principle outlined in the Honourable Supreme Court's Order, as quoted in the Honourable Lahore High Court's Judgment Published as NLR 1982 Tax-1 (Crescent Textile Mills Ltd. Versus Central Board of Revenue). He stated that the Collector (Adjudication-I), Karachi's order announced (on 14.04.2001) after 7V2 months from the date it was reserved (on 30.08.2000) is bad in law more specifically when the said Collector (Mr. Safdar Ali) had already been transferred and posted as Member (Technical) of the Customs, Excise & Sales Tax Appellate Tribunal, Karachi Bench-ll with immediate effect (i.e. With effect from 27.03.2001 vide Establishment Division, Government of Pakistan, Islamabad's Gazette Notification No. 17/4/2001 -E.I dated 27.03.2001. He stated that Mr. Safdar Ali was not the Collector (Adjudication-I), Karachi on 14.04.2001 i.e. The date he signed and announced the impugned Order-in-Original No. 41/2001. He concluded that for the reasons advanced by him in the written appeal and during the hearing, the impugned order may be set aside and the appeal of appellant No. 1 be accepted. The leamed counsel for appellants No. 2 and 3 stated that he fully endorses the arguments of the leamed counsel for' appellant No. 1 and prays for setting aside of the impugned order and acceptance of appeal on the same grounds, as the case against them is baseless and complementary to the case made and decided against appellant No. 1. He denied all charges as fabricated, unlawful and incorrect and prayed for action against the prosecution officers.
4. The leamed representatives of the respondents No. 2 and 3 opposed the appeals on the ground that the acts and circumstances of the case establish that the appellant No. 1, in collusion with appellants No. 2 and 3 had misused the safe transportation facility by dumping the into-bonded goods (cleared from KPT for storage in PWL No. 11/90 at Gadoon) in an un-authorized godown at Karachi. In reply to a query, they admitted that the goods-are shown as duly entered in the Bond Register of appellant No. 1 at Gadoon and duly accounted for under customs supervision, for its storage and ex-bonding and also accounted for in the prescribed excise records of RG-1, RG-2, ARs-1, G.Ps., etc., and finally accounted for as fully consumed in terms of the Consumption Certificates issued by the Assistant Collector, Central Excise, Gadoon. They also admitted that signatures of Customs Officers and Central Excise Officers of Peshawar Collectorate on the aforesaid prescribed documents are genuine but they argued that these were got manipulated by the appellant No. 1 and the safe- transported goods of the 10 consignments, involved in these appeals, were never transported to Gadoon. In reply to another query, they admitted that they did not implicate the concerned Customs and Excise Officers of Peshawar Collectorate as colluders of appellant No. 1. In reply to another query, they also admitted that they did not refer the matter to the Central Board of Revenue or to Peshawar Collectorate for disciplinary action against Customs and Central Excise Officers of Peshawar Collectorate for their alleged connivance in the offence committed by the appellants. At this stage, Mr. Azam Khan, D.S. (Gadoon), presented all the prescribed customs & excise records and registers of the appellant No. 1 and stated that the into- bonded goods were duly received in the appellant No. 1's PWL No. 11/90 at Gadoon, were duly accounted for in the prescribed registers and were duly cleared on ex-bonding for use in their factory with due entries in RG-1, RG-2, AR-ls and G.Ps. He stated that the Assistant Collector of Central Excise, Gadoon, issued the requisite Consumption Certificates for these raw materials after due verification (both physical and on the basis of record). He denied the allegation that these bonded goods were not received in the warehouse at Gadoon. He claimed that the Customs Officers at Gadoon followed the procedure prescribed under Board's CGO No. 10/91 in letter and spirit. He also stated that no Customs or Central Excise Officer at Peshawar has ever faced any disciplinary or prosecution proceedings on any allegation relevant to the allegations (against the appellants) in these appeals. The representatives from respondents No. 2 and 3 also admitted that neither respondent No. 2 nor respondent No. 3 filed any appeal against the Tribunal, Karachi Bench's judgment dated 24.05.2000 in appeal case No. 201/2000 but argued that the said case is different from the present 10 cases on the ground that the goods of that one consignment were not claimed to be transported and warehoused at Gadoon. However, they admitted that all the 11 cases (including that one and these 10 presently under appeal) were made in a series and the issues of fact and issues of law relating to search, seizure and arrest under sections 161, 162 and 163 equally apply to the 11 cases. They admitted that the Collector of Customs (Appraisement) had conveyed to Central Board of Revenue that filing of appeal against Tribunal's aforesaid judgment dated 24.05.2000 would be an exercise in futility. However, they invited attention to the Honourable Supreme Court of Pakistan's Judgment dated 21.05.1998 in Criminal Appeals No. 103 to 107 of 1994 (State Versus Muhammad Nawaz) where it was held that procedural irregularities would not vitiate the proceeding and trial. As regards the empowerment of Rana Zahid, Examiner of DCI, they contended that the post of Customs Examiner is that of a Customs Officer and such Customs Officers derive the authority from SRO 805(I)/84, dated 20.09.1984 and SRO 806(I)/84, dated 20.09.1984. They prayed that the case record show that the appellant No. 1 indulged in tax evasion and fraud by violating the provisions of safe transportation scheme and, in connivance with the appellants No. 2 and 3, committed breach of the cited provisions of Customs Act, 1969. They (representatives of respondents No. 2 and 3) prayed for the rejection of the appeals.
5. Having heard the parties and on perusal of the record of the case, we find that Officers of Customs are specified under section 3 of the Customs Act, 1969, which include Chief Collector, Assistant Collector, Additional Collector, Deputy Collector, Assistant Collector and any other officer of Customs with any other designation. Therefore, there is no doubt that Superintendents of Customs, Inspectors of Customs, Preventive Officer of Customs, Principle Appraisers of Customs, Appraisers of Customs and Examiners of Customs are Customs Officers within the meaning of section 3 of the Act. However, to become the appropriate officers of customs under section 2(b) of the said Act, even such officers have to be assigned the functions for which they are appropriate officers of customs. Such assignment of functions may come from the provisions of the Act or the Rules made thereunder or under a notification to be issued by the Central Board of Revenue. The notifications No. SRO 805(I)/84 and SRO 806(I)/84 have been revised from time to time and can now be seen in the consolidated notification No. SRO 371(I)/2002, dated 15.06.2002 which assigns the functions under sections 158, 160, 161(1), 164, 165. 168, 169, 174, etc., to an officer of Customs not below the rank of an examiner of customs. However, the officers of the Directorate General of Inspection & Audit (Customs & CE) and/or of the Directorate General of Intelligence and Investigation (Cus. & CE), irrespective of their designation and grade, are officers of Intelligence & Investigation (Cus. & CE) and not the Officers of Customs in the ordinary sense and have to be specifically assigned functions in terms of sections 3, 4 and/or 6 of the Customs Act, 1969, or under the relevant provisions of the said Act for being empowered to exercise those functions. For this purpose, the Central Board of Revenue has issued a notification No. SRO 388(I)/82, dated 22.04.1982 authorizing various specified officers of the Directorate of Intelligence & Investigation (Cus. & CE) to exercises the powers and discharge the duties of the officers of Customs under the provisions of the Customs Act, 1969, as specified therein. The Table to the said notification specifically includes Principal Appraisers and Appraisers of Intelligence & Investigation (Cus. & CE) but does not include Examiner of Intelligence & Investigation (Cus. & CE). This rebuts the plea of respondents No. 2 & 3 that an Examiner of Intelligence and Investigation could still exercise the powers of Examiner of Customs under SRO 805(I)/84 or SRO 806(I)/84 or SRO 371 (I)/2002. Had this been so, there was no lawful need of empowerment to the Principal Appraisers and Appraisers of Intelligence & Investigation (Cus. & CE) under SRO 388(I)/82, dated 22.04.1982 as there also exists/existed posts ^of Principal Appraiser of Customs and Appraiser of Customs within the meaning of SRO 805(I)/84, SRO 806(I)/84 and SRO 371(I)/2002. We, therefore, hold that Rana Zahid, an Examiner of Intelligence & Investigation during the relevant period as involved in these cases, was neither an appropriate Officer of Customs nor an Officer of Customs nor an Officer entrusted with the powers to exercise functions of a Customs Officer under sections 2(b), 3, 4 and 6 of the Customs Act, 1969.
Consequently, all acts performed by him as an Officer of Customs were invalid, void and ultra-vires and of no legal consequence. As regards the search and seizure in the licensed premises of M/s. Babar Brothers at Karachi, the matter has been dealt with in details by our learned brothers of Karachi Bench of this Tribunal in their judgment dated 24.05.2000 in Appeal Case No. 201/2000. It will be repetition to reiterate the same in writing again but we are in full agreement with those reasonings, findings and decision that the act of respondent No. 2 was in clear defiance of the provisions of sections 161, 162 and 163 of the Customs Act, 1969. Even the respondent No. 3 i.e., the Collector (Appraisement), Customs House, Karachi, (who issued show cause notices in these 10 cases too) has accepted the said judgment, by intimating the Central Board of Revenue, under the farmer's C. No. SI/Misc/104/95-AIB dated 14.03.2001 that they did not file any appeal against the said judgment dated 24.05.2000 because the filing of an appeal against the orders passed by the Tribunal would have been an exercise in futility. Even, the respondent No. 2 tacitly accepted the said judgment (thus showing that they did not feel aggrieved of it) dated 24.05.2000 by not filing (themselves) and appeal against the said judgment. With the said express and implied acceptance, the judgment has almost attained finality. No forceful argument to the contrary has been advanced before us by the respondents No. 2 & 3 against the verdict contained in the said judgment and no reason has been given as to why the same should not apply to these 10 cases also which are a part of the series of the 11 cases made against the appellants. We are, however, amazed to find that the adjudicating officer has issued show cause notice against the brokers who lodged the goods in the private godown of M/s. Babar Brothers in their own name confessing that they connived with the other appellants but no penalty has been imposed against the said brokers in the impugned order for reasons unknown. Again strangely enough, while no show cause notice has been issued against the godown owners M/s. Babar Brothers, they have yet been condemned and imposed with penalty of Rs. 10 lack without even endorsing copy of the impugned order to them. These speak of weaknesses in the adjudication proceedings. As regards the allegation of quick transportation within 2 days from Karachi to Gadoon, we find that it is not true in all the 10 cases. In 9 of these cases, the time elapsed was 5 days, 6 days, 3 days, 2 days, 4 days, 5 days, 10 days, 5 days and 2 days, as per the Table given at page 12 of the impugned order, and this variance shows bona fide and non-mechanical nature of period elapsed. Last but not the least, we do not find reason why the prescribed official documents of Peshawar Customs & Central Excise have not been given credence and, instead, why reliance is placed on statements of brokers and presumptions of the detecting agency. If the records and registers of Peshawar Customs & Central Excise are false and fabricated, why the investigation did not take notice and cognizance of it.
When the detecting officers do not falsify the existence of entries and record of PWL-11/90 at Gadoon and excise documents of appellant No. 1's factory and when they clearly admit that signatures of Customs and Excise Officers authenticating and countersigning the said entries and record are genuine, how can they plead discarding these entries and record in the prescribed official record. Either they are trying to save the skin of their colleagues in Peshawar Collectorate or they are trying to evade this point of fact, as it does not serve their intent and purposes. The goods involved in this case are neither notified under section 2(s)(ii) and section 156(2) read with the provisions of SRO 491(I)/85 dated 23.05.1985 nor have these been proved, by the prosecution, to have been brought through any unauthorized route or non-notified customs station in breach of section 2(s)(iii) nor alleged to have been imported in breach of any notification under section I6 of the Customs Act, 1969. Accordingly, provisions of clauses 8, 9, 89 or 90 of section 156(1) are not attracted. Since the goods have been duly warehoused in PWL No. 11/90 at Gadoon, the provisions of clauses 1, 14, 49, 50, 51 and 57 of section 156(1), as alleged in the show cause notice, also do not apply. The provisions of clause 82 of section 156(1) of the Customs Act, 1969, as alleged in the show cause notice, can be invoked only by the Court of Special Judge, and not by the departmental adjudicating officers. At the end, we will like to advise the Adjudicating Officer to be fair and cautious, in his own interest. If he could not decide the case within a period of 4 months from the date that he last heard the parties or before he was transferred from the post of Adjudicating Officer, he could leave the case to be reheard and decided by his successor instead of appending his signatures on the impugned order (which tantamounts to announcing the judgment) after IV2 months from the date of last hearing (which is obviously the date he reserved the judgment as he has not given details of any event after the said date) and specially after his transfer from the post of Collector (Adjudication-I), Karachi. With this advice, we will leave this issue without any verdict.
However, for the other reasons mentioned in this paragraph, we hold that the goods cleared from KPT under Safe Transportation Scheme were duly warehoused under customs supervision of Peshawar Collectorate in PWL No. 11/90 at Gadoon and there was no breach of the safe transportation provision, exemption provision, warehousing provision or any other provision by the appellants, as also certified and authenticated by the Customs and Central Excise Officers at Peshawar. The action in the premises of Babar Brothers, Karachi, was unlawful, as accepted by the prosecution in the wake of the un-challenged and non-disputed judgment dated 24.05.2000 by the Karachi Bench of this Tribunal in Appeal Case No. 201/2000. The investigation in this case is lacking and evasive enough, besides the legal and factual infirmities, and does not establish any case against the appellants. As a result, we set aside the consolidated impugned order and the 30 appeals, 10 each filed by the 3 appellants, stand disposed of as accepted.
6. Announced.
7. Inform all the concerned accordingly.