MR. RAJ MUHAMMAD KHAN, MEMBER (JUDICIAL).--(l). This is appeal against the Order-in-Appeal No. 22/2003, passed by the Collector of Customs, Sales Tax & Central Excise (Appeals), Regional Office, Custom House, Peshawar on 03.02.2003, dispatched to the parties on 12.03.2003 whereby he accepting the appeal of Col. (G.S.), F.C. (Hqrs.), Qilabalahisar, Peshawar & other against the Order- in-Original No. 03/2002 dated 21.10.2002 passed by the Deputy Collector of Customs (Adjudication), F.C. (Hqrs.), Qilabalahisar, Peshawar set aside the said Order-in-Original and ordered outright confiscation of the vehicle being notified and smuggled one, u/s 156(1), (8) and (89) of the Customs Act, 1969 (hereinafter referred to as the Act), read with section 3(3) of the Imports and Exports (Control) Act, 1950 further read with Notification S.R.O 374(I)/2002, dated 15.06.2002 for contravention of the provisions of section 2(s) and I6 of the Act read with section 3(1) of the Imports and Exports (Control) Act, 1950 further read with SRO 491(I)/85, dated 23.05.1985. However, non notified goods were ordered to be released to its rightful owner on payment of redemption fine of 25% of the assessed value thereof, in addition to payment of leviable duty and taxes.
2. Brief facts of the case as were reported by the Commandant Mohammad Rifles of Frontier Corps, are that on 27.03.2002 at 2100 hours while carrying out routine checking, the troops of Mohammad Rifles at Darwazagai-1 Check Post, intercepted a Russian Truck (six wheeler) No. UAF SHJ-Export 29627 and Chassis No. 0949934 valuing Rs. 220,000/- (non custom paid) coming from Afghanistan to Mian Mandi, Mohammad Agency through a nullah. The vehicle was stopped for necessary checking but its owner managed to escape from the site. On search of the vehicle, the troops recovered foreign origin mobil oil 1850 gallons from the truck valuing Rs. 2,77,500/- which were seized for violation of the provisions of section I6 of the Act read with section 3(1) of the Imports and Exports (Control) Act, 1950. Subsequently, the owner of the vehicle named Multan Khan appeared before the troops on 30.03.2003 and disclosed the name of driver of the vehicle to be Abdul Fateh while owner of the goods was reported to be Fazal. Afterwards, the case was submitted for disposal to the Adjudicating Authority and the Deputy Collector (Adjudication), F.C. (Hqrs.), Qilabalahisar, Peshawar after considering the available record and finding that no one had produced any proof with regard to the lawful possession or legal import of both the seized goods and the vehicle, held that both the goods and the vehicle were smuggled ones brought into the country in violation of the provisions of section I6 of the Act, read with section 3(1) of the Imports and Exports (Control)
Act, 1950. He, therefore, proceeded ex-parte against the accused respondents Abdul Fateh (Driver), Fazal, (owner of the goods), Multan Khan (claimant of the vehicle) and Barat Khan (shown in the Show Cause Notice as owner of the vehicle per Registration Book) and vide Order-in- Original No. 337/2002, dated 03.06.2002, ordered outright confiscation of the goods including the vehicle in terms of section 156(1), (8) and (90) of the Act, read with section 3(3) of the Imports and Exports (Control) Act, 1950.
3. Aggrieved of the Order-in-Original No. 337/2002, dated 03.06.2002, the accused respondent Barat Khan and Fazle Rahim went in appeal before the Collector of Customs (Appeals), Peshawar who remanded the case back to the Deputy Collector of Customs (Adjudication), F.C. (Hqrs.), Peshawar vide Order-in- Appeal No. 12/2002 dispatched vide C. No. 55/146, dated 24.09.2002 with the observation that the Adjudication Officer did not consider certain important questions of law and facts which needed consideration at the adjudication stage and that the Adjudication Officer was required to pass a speaking order supported by reasoning.
4. After the remand of the case, the Deputy Collector Customs (Adjudication), F.C. (Hqrs.), Qilabalahisar, Peshawar vide his Order-in-Remand No. 03/2002, dated 21.10.2002 reconsidered the matter and concluded that the seizure in question was made by Naib Subedar and it was only the Commandant of the F.C. Who was competent to act u/s 157(2) of the Act as provided under SRO 1017(I)/74, dated 26.07.1974. The seizure was, therefore, held to have been made in this case by incompetent person not authorized under the said SRO. Consequently, it was ordered by the Adjudication Officer that the goods including the vehicle shall be released on payment of duty and taxes if these were not required in any other case.
5. Feeling aggrieved of the Order-in-Remand No. 3/2002 passed by the Deputy Collector Customs (Adjudication), Peshawar, the Col. (GS) F.C. HQ Qilabalahisar, Peshawar and the Commandant Mohammad Rifles, Ghalanai, Mohammad Agency through Major Mohammad Tariq, Anti Smuggling Officer, Balahisar, Peshawar and Mr. Ghulam Daud, Legal Advisor HQ. F.C., preferred appeal before the Collector of Customs, CE & ST (Appeals), Customs House, Peshawar pleading therein, inter alia, that the Adjudication Authority had no power under SRO 374(I)/2002, dated 15.06.2002 to give an option u/s 181 of the Act for release of the goods on payment of duty and taxes leviable thereon in lieu of confiscation and that the goods were brought into the country through unauthorized route.
They prayed for outright confiscation of both the goods and the vehicle.
6. After hearing both the parties and considering their verbal and written submissions, the Collector (Appeals) observed vide impugned Order-in-Appeal No. 22/2003, dated 03.02.2003 that Naib Subedar falling under category of Non Commissioned Officer (NCO) was competent to effect search and seizure in the instant case and that the vehicle being notified item, was not releasable on payment of duty and taxes under the provisions of SRO 374(I)/2002, dated 15.06.2002 u/s 181 of the Act. He, therefore, sat aside the Order-in-Remand No. 3/2002, dated 21.10.2002 and ordered that the vehicle being notified item, non duty paid and smuggled one, stood confiscated outright u/s 156(1), (8) and (89) of the Act, read with SRO. 374(I)/2002, dated 15.06.2002 and further read with section 3(3) of the Imports and Exports (Control) Act, 1950 for contravention of the provisions of sections 2(s) and I6 of the Act read with SRO. 491(I)/85, dated 23.05.1985 and further read with section 3(1) of the Imports and Exports (Control) Act, 1950. However, the non notified goods i.e., the mobil oil was ordered to be released to its rightful owner on payment of leviable duty and taxes, if these goods were not required in any other case.
7. Aggrieved of the Order-in-Appeal No. 22/2003, dated 03.02.2003, the appellant Barat Khan has preferred the instant appeal to this Tribunal on the grounds, inter alia that the goods were imported into the country by lawful means and no notice u/s 171 was served upon the appellant by the seizing agency. That the impugned appeal (Cus. 304/2002 subject of Order-in-Appeal No. 22/2003) was not competent, as it was preferred by unauthorized persons and was not supported by affidavit. That the seizing officer or seizing agency, was not aggrieved person and was not authorized to prefer appeal u/s 193 of the Act. It was explained that the Collector of Customs, Peshawar did not challenge the Order-in- Remand but rather in compliance to it, had already given permission for the release of the vehicle on payment of duty and taxes after completion of proper appraisement on 29.10.2002 and he had deposited duty and taxes for the same in the National Bank of Pakistan, Customs Headquarters, Peshawar on 31.10.2002. He prayed for restoration of the judgment delivered by the Deputy Collector (Adjudication) vide Order-in- Remand No. 03/2002, dated 21.10.2002 providing for the release of both the goods and vehicle on payment of duty and taxes.
8. I have heard leamed counsel for the appellant and D.R. Assisted by D.S. For the respondents and have gone through the record of the case. The appeal file Cus. 304/2002 pertaining to Order-in- Appeal No. 22/2003 was also consulted.
9. The main issue which was pressed at the bar by the appellant, is that the respondent Col. (GS), F.C. (Hqrs.), Qilabalahisar, Peshawar or Commandant Mohammad Rifles, Mohammad Agency could not prefer appeal before the Collector of Customs, CE & ST (Appeals), Peshawar as they were not aggrieved persons and thus the Order-in-Appeal No. 22/2003 was without jurisdiction and lawful authority.
10. The other issue is that no notice u/s 171 was served by the seizing agency on the appellant at the time of seizure. In support of his contention regarding non maintainability of the aforesaid appeal, the appellant relied upon the recent judgment delivered by the Honourable High Court of Sindh at Karachi in Special Custom (Appeal) No. 282/2002 titled Director General of Intelligence and Investigation, Customs & Excise, Karachi Vs. M/s. Al-Faiz Industries (Pvt.) Ltd. And other wherein it was held that the interpretation of the term "aggrieved" refers to a substantial grievance, a denial of some personal, pecuniary or property right, or the imposition upon a party of a burden or obligation. In the light of this definition, the Director, Directorate General of Intelligence and Investigation (Customs and Excise, Karachi) could not be termed as "aggrieved party" and he was not clothed with the function and powers of the Collector to enable him to file appeal nor he was an "aggrieved person" to file appeal. On the analogy of the said authority, it is contended by the appellant that likewise, the Col. (GS), F.C. (Hqrs.), Qilabalahisar, Peshawar and Commandant Mohammad Rifles, Mohammad Agency who were seizing and investigating agency could not be termed to be "aggrieved party" or "aggrieved person" and so they could not prefer appeal to the Collector (Appeals) u/s 193 of the Act.
11. Moreover, the Frontier Corps (F.C.), N.W.F.P. Personnel have not been appointed as officers of Customs under the provisions of section 3(g) of the Act but instead they have been entrusted with certain functions of officers of Customs vide Notification No. SRO. 281 (I)/95, dated 09.04.1995, for carrying out these functions within the territorial limits of certain agencies and F.R. Areas of N.W.F.P.
Such functions are specified in second column of the table given in the notification exercisable by the officers of the F.C. Mentioned in first column of the table. Thus the functions of officers of Customs, specifically assigned to the officers of F.C., can by no stretch of imagination, empower the officers of the F.C., N.W.F.P, to exercise general powers of officers of Customs including to exercise the right of appeal under section 193 of the Act as officers of Customs, since such function has not been specifically assigned to them under the said S.R.O.
12. Now coming to the other qualification attached to the exercise of right of appeal under section 193 which is that any person including an officer of Customs must be "aggrieved" by any decision or order passed under section 179 of the Act. The expression "aggrieved person" denotes a person who has got a legal grievance i.e. a person is wrongfully deprived of anything to which he is legally entitled and not merely a person who suffers some sort of disappointment but not suffer any personal injury or whose interest is adversely affected by a decree or judgment. The Detecting Officer or any such agency representing the prosecution, is not an aggrieved person.
13. . It has been observed from the record of impugned appeal Cus. 304/2002 that both Major Muhammad Tariq as Anti Smuggling Officer, H.Q.F.C., Balahisar, Peshawar and Ghulam Daud, Legal Advisor, H.Q.F.C., Balahisar, Peshawar had placed no written authority on file of that appeal on behalf of Col. (G.S.), H. Q.F.C., Balahisar, Peshawar or on behalf of the Commandant, Mohammad Rifles. The affidavit verifying the memo of the appeal was not attested by Oath Commissioner.
Important is the factor that the basic Show Cause Notice C. No. Add. C/FC/203/2002/955, dated 19.04.2002, issued by Additional Collector (Adjudication) to Barat Khan and others did not mention the violation of the provisions of section 2(s) of the Act nor the SRO. 374(I)/2002 under which the Collector (Appeals) has proceeded for outright confiscation of the vehicle against the appellant and others vide impugned Order-in-Appeal No. 22/2003.
14. As regards the non issuance of notice u/s 171, the same issue does not appear to have been pressed for at the bar at any stage in the lower forums. The seizure of the goods was effected in the absence of the occupant of the vehicle since he had managed escape. Still, as appears from the record, one Multan who claimed the vehicle initially, had appeared before the Seizing Agency, was served with notice u/s 171 of the Customs Act, the receipt of which was acknowledged by him in the Recovery Memo. The -issue has thus become redundant.
15. In view of the aforesaid definition of aggrieved person, the appellants before the Collector of Customs, Sales Tax and Central Excise (Appeals), Peshawar, who were Col. G.S., F.C. (Hqrs.), Qila Balahisar, Peshawar and Commandant, Mohammad Rifles, Ghalanai, Mohammad Agency, might have been disappointed by the Order-in-Remand No. 03/2002, for the reason that a proceeding initiated by their staff had failed but they or their staff have not suffered any personal injury. It is, therefore, held that both the Col. G.S. And Commandant could not prefer appeal No. Cus. 304/2002 before the Collector (Appeals) and the Collector (Appeals) could not dwell upon that appeal to pass Order-in-Appeal No. 22/2003, dated 03.02.2003 against the Order-in-Remand No. 3/2002, dated 21.10.2002, already passed by Deputy Collector of Customs (Adjudication), F.C, Headquarters, Peshawar. The said Order-in- Remand had therefore attained finality and is to prevail in the field which provided that since the vehicle and goods were seized by unauthorized person, these are to be released on payment of duty and taxes, if not required in any other case. Since this Tribunal is not empowered to suo-moto question the validity of the Order-in- Remand passed by the Adjudication Officer, I will hesitate to thrash out the verdict given in the said Order-in-Remand No. 3/2002, dated 21.10.2002.
16. In view of the above, I accept the instant appeal and set aside the impugned Order-in-Appeal No. 22/2003 to the extent of the right of appellant Barat Khan confined to the seized vehicle only (since the other goods have already been released by the lower forums), just on the ground that Col. G.S., F.C. (Hqrs.), Qila Balahisar, Peshawar and Commandant, Mohammad Rifles, Mohammad Agency were not competent to prefer their appeal No. Cus. 304/2002 to the Collector of Customs (Appeals), Peshawar.
17. Announced.