COLLECTOR CUSTOMS, CUSTOM HOUSE, PESHAWAR, AMAN GARH vs M/s.
The Collector of Customs sought leave to appeal against a Peshawar High Court judgment regarding the correct penal provision applicable to a customs irregularity. The respondent company imported wood pulp, which was stored in a private bonded warehouse; upon inspection, a significant shortage was discovered, indicating the goods had been consumed without authorization. The Customs department sought to impose penalties under Section 156(1) Clause 90 of the Customs Act, while the High Court held that Section 156(1) Clause 62 was the applicable provision. The Supreme Court examined the language of both clauses. Clause 62 specifically addresses the illegal removal of goods from a warehouse without payment of duty, whereas Clause 90 pertains to broader offenses involving the possession, concealment, or dealing with goods unlawfully removed or subject to evasion. The Court held that the facts of the case—unauthorized consumption of bonded goods—fell squarely within the ambit of Clause 62. Consequently, the Supreme Court affirmed the High Court's decision, ruling that the penalty must be limited to the amount prescribed under Clause 62, and dismissed the petition for leave to appeal.
- Does the unauthorized consumption of goods from a private bonded warehouse fall under Clause 62 or Clause 90 of Section 156(1) of the Customs Act 1969?
- What is the maximum penalty applicable for the illegal removal of goods from a warehouse under Section 156(1) Clause 62 of the Customs Act 1969?
- Section 156(1) Clause 62, Customs Act 1969
- Section 156(1) Clause 90, Customs Act 1969
Sardar Muhammad Raza Khan, J.--The Collector Customs Peshawar seeks leave to appeal against the judgment dated 12.12.2001 rendered by a learned Division Bench of Peshawar High Court whereby, it was held that, to the irregularity committed by M/s. Paper International (Pvt.) Ltd., the correct section of Customs Act applicable was Section 156(1) Clause 62 and not Section 156(1)
Clause 90, as claimed by the Customs department.
2. The respondent imported to consignments of wood pulp on 20.5.1998 and 25.5.1998 from Canada and Indonesia. The consignment of 3000 metric tons of Indonesian origin was cleared at Karachi while Canadian consignment of 497.361 metric tons was unloaded in the factory in private bonded warehouse; both simultaneously. When the department physically checked the consignment on 5.10.1998, a shortage of 357.361 metric tons was discovered, to have been consumed without intimation to the Customs authorities.
3. The adjudication officer vide order-in-original dated 4.11.1998 imposed a penalty of rupees three million plus duties which, by the Custom Appellate Tribunal was reduced to rupees one million. The order of the Tribunal was set aside by the Hon'ble High Court through impugned judgment, holding that the respondents were liable to a penalty not exceeding rupees twenty-five thousand as provided by Section 156(1) Clause 62 of the Customs Act.
4. Having comprehended the actual commission or omission by the respondent company, we are left to determine as to what section of law is attracted, in the circumstances. Clauses 62 and 90 of Section 156(1) of the Act are reproduced for facility of ready reference:-- Offences Penalties. Section of this Act to which offence has reference.
62. If any person illegally takes any goods out of any warehouse without payment of duty, or aids, assists or is otherwise concerned therein. Such person shall be liable to a penalty, not exceeding twenty five thousand rupees and upon conviction by a Special Judge, he shall further be liable. to imprison - ment for a term not exceeding five years, or to fine, or to both.
90. If any person, without lawful excuse, the proof of which shall be on such person, acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any goods, not being good referred to in clause 89, which have been unlawfully removed from a warehouse or - which are chargeable with a duty which has not been paid, or with Respect to the importation or exportation of which there is a reasonable suspicion that any prohibition orSuch goods shall be liable to confiscation and any person concerned shall also on shall be liable to penalty not exceeding ten times the value of the goods, restriction for the time being in force under or by virtue of this Act has been 'contravened, or if any person is in relation to any such goods, in any way without lawful excuse, the proof of which shall be on such person, concerned in any fraudulent evasion or attempt at evasion or any duty chargeable thereon, or of any such prohibition or restriction as aforesaid or of any provision of this Act applicable to those goods."
5. A plain reading of the two clauses juxtaposed, would indicate without difficulty of comprehension or interpretation that to the circumstances of the present case, it is Clause 62 of the section that applies and not Clause 90. It clearly provides that the penalty shall not exceed rupees twenty-five thousand and the person concerned can also be tried by the Special Judge Customs. If found guilty he shall be liable to imprisonment for a term not exceeding five years or fine or to both.
6. In the circumstances, the High Court rightly came to the conclusion that it arrived at. There being no force in the petition, it is hereby dismissed and leave to appeal refused.