2013 P T D 440
[Balochistan High Court]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
COLLECTOR OF CUSTOMS, FEDERAL EXC ISE AND SALES TAX, QUETTA
Versus
RAMZAN and another
Custom Reference No.19 of 2008, decided on 3rd December, 2012.
Customs Act (IV of 1969) ---
----Ss. 181, 15, 16 & 196 ---Notification S.R.O. 574(I)/2005 dated 6 -6-2005 ---Reference
to High Court ---Seizure of vehicle used in conveyance of smuggled goods ---Option for
payment of fine in lieu of confiscated goods ---Quantum of fine ---Scope ---Collector Customs
impugned order of Customs Appellate Tribunal whereby quantum of fine imposed upon
accus ed for release of vehicle used in smuggling was reduced ---Validity ---Section 181 of the
Customs Act, 1969 empowered the Adjudicating Officer to give the owner of the goods an
option to pay fine in lieu of confiscation of goods, such fine as he thought fit, and the proviso
to said section provided that Federal Board of Revenue may by an order fix quantum of fine
in lieu of confiscation on any goods or class of goods imported in violation of S.15 of the
Customs Act, 1969 or of a notification under S.16 of the Customs Act, 1969 or any other law
for the time being in force ---Quantum of fine, in the present case, was in accordance with
S.R.O. 574(I)/2005 dated 6 -6-2005 and in the light of the same, there was no merit in present
Reference application of the Collec tor---Reference application was dismissed.
Said Gul v. The Collector of Customs and others (sic) ref.
Ch. Mumtaz Yousaf, Standing Counsel along with Muhammad Azam Chughtai, Law
Officer Customs for Appellants.
Nemo for Respondents.
Date of hear ing: 31st July, 2012.
JUDGMENT
GHULAM MUSTAFA MENGAL, J. ---This Custom Reference Application has
been filed under section 196 of the Custom Act, 1969 against the order dated 25th March
2008, passed by the Member (Technical -I), Customs Excise and Sales Tax Appellate
Tribunal, Bench -I. Karachi whereby impugned order dated 17th November 2006 was
modified and fine was reduced to Rs.30,000 (rupees thirty thousand) per vehicle.
2. Precisely stating facts are that on 27th February, 2006 at about 5 -00 hours the
Customs Mobile Squad intercepted a bus bearing Registration No.SGH -6654 near Gaddani.
On search 5100 liters Iranian Petrol and 75 empty plastic Cans were recovered from the said
bus. The goods along with the vehicle were seized. The seized goods were brought to the
Custom House, Gaddani and notice under section 171 of the Customs Act, 1969 was issued
to the un -known owner by pasting the same on the Notice Board of the Custom House,
Gaddani. Thereafter the petrol and vehicle were seized under the Custom s Act, 1969 and
subsequently Messrs Nadeem and Associates Advocates for the applicant Ramzan son of Yar
Muhammad applied for release of the seized vehicle, claiming to be the owner of the same.
After issuing show cause notice and hearing the learned counse l for the claimant the Assistant
Collector, Customs, Gaddani out rightly confiscated the seized goods and released the
vehicle against payment of redemption fine of 30% of the Customs value of the same to its
lawful owner vide order dated 19th April 2006 . Against the order dated 19th April 2006 an
appeal was filed by the owner of the seized vehicle before the Collector, Customs, Sales Tax
and Federal Excise (Appeal), Quetta, who after hearing the parties dismissed the same vide
order dated 11th December 2 006. Against which orders the respondent No.1 preferred appeal
before the Appellate Tribunal Customs, Excise and Sales Tax, Bench -I, Karachi, who
allowed the appeal, modified the impugned order and reduced the fine to Rs.30,000 (rupees
thirty thousand) per vehicle vide order dated 25th March, 2008.
3. Against the above order instant Custom Reference Application under section 196 of
the Customs Act, 1969 was filed. Since the address of the respondent No.1 could not be
located, therefore, notice w as published in the Daily Jang, Quetta but despite service through
publication none appeared on behalf of the respondent No.1, as such, he was proceeded
against ex parte vide order dated 4th September, 2012.
4. Ch. Mumtaz Yousuf, learned Standing Counsel vehemently submitted that the
Member Technical, Appellate Tribunal Bench -I, Karachi has failed to appreciate the
provisions of section 2(s) of the Customs Act, 1969 and the provisions as contained in clauses
(b) (vi) of S.R.O. 574(I)/2005 dated 6th June 2 005, as such, the impugned order is liable to be
set-aside.
5. We have heard the learned Standing Counsel and have gone through the relevant
provisions of law. It would be appropriate to reproduce section 181 of Custom Act, 1969: --
"181. Option to pay fine in lieu of confiscated goods. ---Whenever an order for the
confiscation of goods is passed under this Act, the officer passing the order may give
the owner of the goods an option to pay in lieu of the confiscation of the goods such
fine as the officer thinks fit."
Provided further that the Board may, by an order, fix the amount of fine which, in lieu
of confiscation, shall be imposed on any goods or class of goods imported in violation
of the provisions of section 15 or of a notification i ssued under section 16, or any other law
for the time being in force.
Plain reading of above section empowers the Adjudication Officer to give owner of
goods an option to pay in lieu of confiscation of goods such fine as he thinks fit; whereas, the
second proviso of the said section provides that the Board may by an order fix the amount of
fine which, in lieu of confiscation, shall be imposed on any goods or class of goods imported
in violation of the provisions of section 15 or of a Notification issued under section 16 or any
other law for the time being in force. In exercise of such powers Central Board of Revenue
issued S.R.O. 574(I)/05 dated 6th June 2005. Clause (b) of the said S.R.O provides that
quantum of fine shall not be less than that specified in column No.3, of the column below and
shall be over and above the Customs duties and other taxes and penalties imposed under the
relevant law, which rate has been fixed as 30% of the Customs value in case of lawfully
registered conveyance found carrying offending goods under section 2(s) of the Customs Act,
1969.
6. At this juncture it would be beneficial to make reference to the unreported case of
Said Gul v. The Collectorate of Customs and others (sic). In this case some vehicles were
used in conveya nce of smuggled goods. After issuing show cause notices and hearing the
parties the Adjudication Officer released the vehicles against payment of redemption of fine
equal to 30% of CIF value of each vehicle. Said order was assailed before the Collector
Custom (Appeals), Quetta, who allowed and the same was challenged before the Appellate
Tribunal, who after hearing the parties allowed the appeal and order of the Collector
(Appeals) was set aside and order of the Adjudication Officer was maintained. Honorabl e
Supreme Court while attending this question held as follows: --
"We have heard learned counsel for the parties at length and perused the record. The
CBR in exercise of powers issued S.R.O. No.574(I)/05 dated 6 -6-2005, Clause (b)
whereof provides that qu antum of fine shall not be less than one specified in Column
No.3. Clause a(ii) of the aforementioned Notification reads "lawfully registered
conveyance including packages and containers found carrying smuggled goods in
false cavities or being used exclusi vely or wholly for transportation of offending
goods under section 2(s) of the Customs Act, 1969. Whereas clause (b) provides
"subject to provisions of clause (i) where an option is given to pay fine in lieu of
confiscation, the quantum of fine in lieu of confiscation in respect of offences
specified in column (ii) of the table below shall be (not to be at a rate less than that)
specified in column (iii) of the table below and shall be over and above the Custom
duties and other Taxes and penalties imposed under the relevant law. Clause (vi)
covers the case of petitioners is reproduced below; --
"(vi) Lawfully registered conveyance including packages and containers not covered
under sub -clause (ii) of clause (a) found carrying offending goods under section 2(s)
of the Customs Act, 1969 (added by S.R.O. 1147(I)/2005, dated 18 -11-2005.
30%".
7. In view of the above discussion, we find no substance in this Custom Reference
Application, which is accordingly dismissed in limine.
KMZ/2/Q Referen ce 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.