The COLLECTOR OF CUSTOMS, MODEL CUSTOM COLLECTORATE, QUETTA Versus ABDUL RAHIM

1. NAZEER AHMED LANGOVE, J .----This Customs Reference is directed against the order dated 5th August 2017 (hereinafter the "impugned order") passed by learned Customs Appellate Tribunal Bench-III, Karachi (hereinafter the "Appellate Tribunal") in Customs Appeal No.Q-836/2017, whereby the Order-in-Original No.47/2017, dated 1st June 2017 (hereinafter the "order") passed by learned Collector of Customs (Adjudication), Custom House, Quetta (hereinafter the "Collector"), was up-held and the appeal filed by the respondent No.1 was dismissed. Hence, this Reference.

2. Facts of the case are that pursuant to report of the Superintendent Customs Check-post Shella Bagh, that on receiving credible information through Deputy Collector Customs Chaman that foreign origin non-duty frames will be transported from Chaman to Quetta; on 28th March 2017 the staff of Customs intercepted a Hino Truck with Cabin bearing Registration No.TKY-390, Chassis No.GK1JWB-10069, loaded with following goods:

2. S.No.

3. Description of Goods

4. Quantity

5. 01

6. Hino Chassis Frame No.FD3HJA-18046

7. One

8. 02

9. Hino Chassis Frame No.FD3HLA-26153

10. One

11. 03

12. Hino Chassis Frame No.FC3JLE-10723

13. One

14. 04

15. Hino Chassis Frame No.FE1JLD-10688

16. One

17. 05

18. Hino Chassis Frame No.FD3HLA-16902

19. One

20. 06

21. Hino Chassis Frame No.FE1JGB-12515

22. One

23. 07

24. Hino Chassis Frame No.FC2JKB-11060

25. One

26. 08

27. Hino Chassis Frame No.FE1JMD-10191

28. One

29. 09

30. Hino Chassis Frame No.FD2H1JA-10484

31. One

32. 10

33. Hino Chassis Frame No.GD3HLA-10276

34. One

35. 11

36. Hino Chassis Frame No.FDIJJD-10241

37. One

38. 12

39. Hino Chassis Frame No.FD3HLA-21313

40. One

41. 13

42. Hino Chassis Frame No.FD3HPA-11135

43. One

44. 14

45. Hino Chassis Frame No.FD3HLA-27133

46. One

47. 15

48. Hino Chassis Frame No.FD3HKA-16293

49. One

50. 16

51. Hino Chassis Frame No.FD3HLA-30517

52. One

53. 17

54. Hino Chassis Frame No.FD1JLB-10863

55. One

56. 18

57. Prado Chassis Frame No.FD165B-22095

58. One

59. 19

60. Hino Chassis Frame No.FD2HPA-50109

61. One

62. 20

63. Hino Chassis Frame No.GD2HKA-50117

64. One

65. 21

66. Hino Chassis Frame No.FC1JJE-10952

67. One

68. Which were taken into possession and seized under section 168 of the Customs Act, 1969 (hereinafter the "Act") for violation of the provisions of sections 2(s) and 16 of the Act read with SRO 566(I)/2005 dated 6th June 2005 and SRO 499(I)/2009 dated 13th June 2009, subsection (1) of section 3 of Imports and Exports (Control) Act, 1950, punishable under clauses (8) and (89) of section 156(1) of the Act, read with SRO 499(I)/2009 dated 13th June 2009. Notice under section 171 of the Act was issued and the owner (claimant) was called upon under section 180 of the Act to show-cause accordingly.

3. In response to the notice, Abdul Raheem son of Ghulam Haider (respondent No.1) appeared and submitted an application for release of the seized goods against payment of duty and taxes.

4. The learned Collector (Adjudication), Quetta, after hearing the arguments and evaluating the evidence, vide its order dated 1st June 2016, whereby the vehicle and goods were ordered to be confiscated, relevant portion therefrom reads as under:

69. "Keeping the above discussion in view and considering the fact that the owner/claimant has failed to produce any lawful excuse/legal import documents to prove lawful possession of the seized goods, and has rather expressed his desire to pay leviable duty and taxes thereon, it is abundantly clear that the subject Hino Chassis Frames and vehicle mentioned at serial number 1 to 20 of the table given in para. 12 above are smuggled and have been brought into the country illegally by evading legitimate duty and taxes. Consequently, all the 19 seized frames and the vehicle involved in this case are ordered to be outrightly confiscated in terms of clauses (8) & (89) of section 156(1) of the Customs Act, 1969 for violation of sections 2(s) and 16 of the Customs Act, 1969 read with SRO 566(I)/2005 dated 06.06.2005 further read with subsection (1) of Section 3 of Imports and Exports (Control) Act, 1950. I also impose a penalty of Rs.200,000 upon the respondent under clauses (8) & (89) of section 156(1) of the Customs Act, 1969.

21. It is further ordered that the subject seized/confiscated chassis frames may either be cut into pieces or their chassis numbers may be removed/defaced/disfigured prior to their disposal in order to prevent/forestall their subsequent conversion to used trucks/vehicles as is being done in MCC, Peshawar (reference: Order-in-Original No.622768-09012017)."

70. Challenged before the Appellate Tribunal; vide, order dated 5th August 2017, whereby the appeal filed by the respondent No.1 was dismissed with the following observation:

71. "13. The plea of the department is genuine and their request is accepted to the extent that auction of the goods is allowed to be made on the basis of past practice without cutting of frames and mutilating number. However, the Collector is required to take all possible measures to avoid its misuse besides taken as per past practice.

14. The chassis frames have been smuggled into the country. These are not importable and rightly confiscated by the learned adjudicating authority. Therefore, except for auction procedure as discussed in para 13 above, the order of the adjudicating authority is upheld and appeal of the appellant is dismissed being devoid of any merit."

5. Heard the learned counsel for the parties and gone through the record; as per contention of the respondent, he is an investor, made investment with few businessmen of Chaman, including a dealer of auto parts in February, 2017; who according to him pressed for return of loan, the dealer in auto parts had offered quantity of twenty-one (21) frames, in lieu of cash; further added that there were some news of amnesty, he therefore, with bona fide intention accepted the offer; brought these frames for presenting to Customs for regularization and entrusted to a Goods Transport Company for carriage from Chaman to Quetta; however, on reaching the Customs check post Shella Bagh, the Customs staff seized these chassis frames under the Customs Act, 1969.

72. The Department was of the view that its request was accepted to the extent that auction of the goods is allowed to be made on the basis of past practice, without cutting of frames and mutilating number. However, the Collector would be under legal obligation to take all possible measures to avoid its misuse.

6. Perusal of the impugned order reveals that there is no direction of the Tribunal with regard to auction or otherwise of the vehicle. He simply stated that the Department is permitted to continue its past practice. It is for the Department to continue or discontinue its past practices. There is no specific direction by the Tribunal to the Department to auction the seized goods, rather the request of the Department has been accepted. Under such circumstances, the question arises as to how the Collector is an aggrieved person. The points so raised through this reference, in our considered view, are not convincing to interfere in the findings of the Tribunal, based on good grounds of law and facts, thus the same are not open to any exception, hence maintained; consequently the reference filed by the applicant stands dismissed.

73. Order accordingly.

74. SA/37/Bal. Reference dismissed.