PLJ 2013 Tax Cases (Qta.) 54 (DB)
Present: Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ.
COLLECTOR OF CUSTOMS, FEDERAL EXCISE AND SALES TAX,
RAMZAN and another--Respondents
Custom Reference No. 19 of 2008, decided on 3.12.2012.
Customs Act, 1969 (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 accused for release of vehicle used in smuggling was reduced--Validity--Section 181 of the Customs Act, 1969 empowered the A.O to give the owner of the goods an option to pay fine in lieu of confiscation of goods, such fine as he thought fit, all proviso to said section provided that F.B.R. 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 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 Collector--Reference application was dismissed. [P. 56] A
Ch. Mumtaz Yousaf, Standing Counsel along with Mr. Muhammad Azam Chughtai, Law Officer Customs for Appellants.
Nemo for Respondents.
Date of hearing: 31.7.2012.
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.
whereby impugned order dated 17th November 2006 was modified and fine was reduced to Rs.30,000 (rupees thirty thousand) per vehicle. Karachi
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 nearGaddani. 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 Customs 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 counsel 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 2006. 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 was published in the Daily Jang,
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. Quetta
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 2005, 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 issued 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 conveyance 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),
, 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. Honorable Supreme Court while attending this question held as follows:-- Quetta
"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 quantum 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 exclusively 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.
(R.A.) Reference dismissed