2012 P T D 28
[Balochistan High Court]
Before Jamal Khan Mandokhail and Abdul Qadir Mengal, JJ
COLLECTOR OF CUSTOMS, MODEL CUSTOMS COLLECTORATE,
BALOCHISTAN
Versus
Messrs ABDUL SATTAR and another
Custom Reference No.7 of 2011, decided on 14th September, 2011.
Customs Act (IV of 1969) ---
----Ss. 157(2) & 187 ---Smuggling of goods ---Onus to prove ---Principle of shifting of
onus ---Applicability ---Authorities confiscated goods on the ground that the same were
smuggled but respondent contended th at the goods were purchased from the auction by
contractor of Meerani Dam Project ---Customs, Excise and Sales Tax Appellate Tribunal
allowed the appeal filed by respondent and directed to release the goods and refund the
fine---Validity ---Held, Customs, Ex cise and Sales Tax Appellate Tribunal had taken a
right view in respect of seized goods ---Initial burden, under S.187 of Customs Act, 1969,
was on the respondent to show a lawful authority or permit or document in respect of the
possession of foreign origi n goods ---Respondent had successfully discharged his burden
by producing documents proving purchase of goods through a lawful auction from the
Engineering company working on the Dam ---After reasonable explanation offered by
respondent, responsibility shift ed upon Customs Authorities to show that goods were
smuggled by respondent but no evidence or material was produced by Customs
Authorities ---Customs, Excise and Sales Tax Appellate Tribunal did not commit any
error, nor any law point requiring interpretati on was pointed by authorities ---High Court
declined to interfere in the order passed by Customs, Excise and Sales Tax Appellate
Tribunal ---Reference was dismissed in circumstances.
Ch. Mumtaz Yousaf for Appellant.
Sadbar Jan for Respondent No.1.
Date of hearing: 5th September, 2011.
ORDER
ABDUL QADIR MENGAL, J. ---This reference has been filed against the order
dated 29 -10-2010, passed in Custom Appeal No.Q -199 of 2009, by the Customs, Excise
and Sales Tax Appellate Tribunal, Bench -I, Karachi, whereby the order dated 22 -12-
2008, passed by the Collector of Customs ( Appeals) in Custom Appeal No.96 of 2008
was set aside including the original Custom Order No.4 of 2008, passed by the
Assistant Collector Customs House, Gwadar, with a direction that confiscation of
goods is illegal including fine levied on Truck No.TKJ -525, as such, released the goods
and ordered to refund the fine, if any has been recovered.
2. Being aggrieved of the said order, the Collector Customs, Model Customs
Collectorate Customs House, Quetta has come to this Court with a prayer that the order
dated 29 -10-2010, passed by the Member Judicial Bench -I, Appellate Tribunal Customs,
Excise and Sales Tax, in Case No.16 -Cus/Seiz/GWD/08 is illegal, which requires
interference and further a genuine point of law is involved in the matter, as the Customs
Appellate Tribunal Bench -I, Karachi erred to hold responsible the Customs Authorities to
prove the case instead of the owner, which is contrary to the provisions of section 187 of
the Customs Act, 1969.
3. Learned Standing Counsel stated that, the goods were imported and smuggled one,
while the Customs, Excise and Sales Tax Appellate Tribunal, Bench -I, Karachi, without
asking for the import documents, has illegally ordered the release of the goods.
4. We have heard Ch. Mumtaz Yousaf, Standing C ounsel on behalf of the State and
as well as for Collector Customs, while Mr. Sadbar Jan Advocate was heard for
respondent No.1. The facts as has been gathered from the record are that on 8 -6-2008, the
staff of the Customs House stopped a ten wheeler truck bearing Registration No.TKJ -525
on Zero point, Uthal, which was coming from Turbat side towards Karachi. On checking
of the truck there were empty pressed drums, caps and cans including iron and steel
scrape re -meltable. The driver Yar Muhammad was asked to show the legal import
documents to clear the position, however, he failed to show any document, as such, the
customs authorities seized the goods and the truck under section 157(2) of the Customs
Act, 1969.
5. It is an admitted fact that the Customs, Ex cise and Sales Tax Appellate Tribunal,
Bench -I, Karachi, clearly has mentioned in the impugned order that the respondent had
produced the documents in respect of confiscated scrape, which he has bought in an open
auction, held by the Messrs Meerani Dam Pro ject Authorities. Both the lower forums i.e.
Assistant Collector Customs including the Excise Federal Appellate Tribunal and
Assistant Collector Customs House, Gwadar rejected the version of the respondent,
holding that the subject auction has been held in violation of provisions of the Customs
Act, 1969, as no approval of the relevant customs authorities has been obtained. The
Customs Appellate Tribunal, and as well as the Assistant Collector Customs House,
Gwadar mainly based their view on Rule 58 of Chap ter-V of S.R.O. 450(I)/2001, which is
reproduced as under: --
"As soon as the goods at any place in the custody of any person have reached
the stage of being sold under the Act, or in the opinion of such person are
required to be sold by auction, shall be brought to the notice of the Deputy
Collector or the Assistant Collector of the area concerned by that person
giving a list of such goods."
6. The documents produced by the respondent shows that the goods have been
purchased by the respondent through auc tion from Descon Engineering Limited, who is
working at Meerani Dam, Turbat. Admittedly, the company importing various types of
articles for construction of the said Dam. The company has sold the goods through a valid
auction is not bound to inform the Cus toms Authorities, as it is a private limited
company. The above provision of law related about the goods, which are seized by an
authority under the Customs Act, such as police, coast guard, F.C and other related
agencies, who having power to seize the goo ds under the Customs Act, 1969, and after
seizer, if the authority intends to auction the goods, it should issue notice to the Customs
Authorities, and the respondent is not responsible for non -compliance of any provision of
the Customs Act by the Descon E ngineering Limited.
7. In our view, the Customs, Excise and Sales Tax Appellate Tribunal, Bench -I,
Karachi has taken a right view in respect of the seized goods. No doubt under section 187
of the Customs Act, 1969 the initial burden lies on the shoulder of the respondent to show
a lawful authority or permit or document in respect of the possession of the foreign origin
goods. The respondent has successfully discharged his burden by producing the
documents proving purchase of the goods through a lawful aucti on from Descon
Engineering Limited. So after a reasonable explanation offered by the respondent, the
responsibility shifted upon the Customs Authorities, to show that the goods, were
smuggled by the respondent, but no evidence or material was produced by t he Customs
Authorities. The Customs, Excise and Sales Tax Appellate Tribunal, Bench -I, Karachi has
not committed any error, nor the learned Standing Counsel has pointed out any law point,
requiring interpretation.
8. Thus, with the above discussed circumst ances this reference has no any weight and
the same is dismissed.
M.H./116/Q eference dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.