2008 PTD 659
ZAFAR UL MAJEED, MEMBER (TECHNICAL).--- This judgment shall dispose of two appeals cited in the titled filed against customs orders in Appeals Nos.296 of 2007 and 297 of 2007 both, dated 29-9-2007 passed by the Collector (Appeals), Customs, Sales Tax & Federal Excise, Multan, which involve identical questions of lacy and facts.
2. The common facts involved in these appeals are that on 4-10-2006 the staff of Customs Intelligence, Multan intercepted two trucks bearing registration numbers TKB-860 and TKH-012 carrying billets, one mini Mazda truck each and serviceable auto parts. On demand, drivers of the trucks produced documents relating to payment of sales tax on the billets by M/s. Bolan Steel Industries, Quetta and booked in favour of M/s. Super Steel Mills, Lahore but could not produce any proof in respect of lawful import of the mini trucks and auto parts loaded on the trucks. Accordingly, mini trucks and auto parts were seized by the staff while billets and trucks No.TKB-860 and TKH-012 were released with the approval of the Assistant Director, Customs Intelligence, Multan. The case was adjudicated by the Additional Collector (Adjudication), Multan vide customs Orders-in-Original Nos.64 of 2007 and 65 of 2007 both, dated 5-3-2007 whereby the seized goods were confiscated with an option given to the owners to redeem the same on payment of fine equal to 30% of their customs value in addition to duty and taxes payable thereon. The trucks used for carriage of these goods were also ordered to be confiscated under section 157(2) of the Customs Act, 1969 (hereinafter called the Act), but allowed released against of payment of 30% redemption fine.
3. Through the instant appeals, the appellant have contested 30% redemption fine on trucks No.TKB-860 and THK-012 imposed vide impugned orders mainly on the ground that neither the trucks were seized by the staff of Customs Intelligence nor any show-cause notice was issued in this regard by the adjudicating officer. The orders in originals imposing redemption fine are, therefore, illegal as, according to the appellant, redemption fine could be imposed only in respect of goods which were confiscated. It has also been argued that even otherwise the trucks were primarily being used for carrying tax paid goods (billets) and, therefore, these cannot be confiscated simply on recovery of some smuggled goods loaded thereon. Learned counsel stressed that, the trucks and tax paid billets were released by the Customs Intelligence staff after thoroughly examining this aspect and after seeking approval from their senior officers.
4. Learned D.R. when confronted with the points raised by the learned counsel, conceded that while auto parts and mini Mazda trucks were seized on the ground of their being non-duty paid/smuggled one, the trucks and billets, which were found to be tax paid, were released with the approval of the Assistant Director, Customs Intelligence. He also conceded that no charge regarding involvement of the trucks was framed against the appellants in the show-cause notices.
5. I have examined the record of the case and given due consideration to the submissions made by both sides. Admittedly, while the mini Mazda trucks and serviceable auto parts found to be smuggled/non-duty paid were seized by the Customs Intelligence staff, the trucks along with the tax paid billets loaded thereon were released with the approval of the officer of the level of Assistant Director considering them, not liable to confiscation. Accordingly, no charge regarding involvement of trucks in the smuggling of goods was framed against the appellants in the show-cause notice. The orders of confiscation of the trucks, though not physically seized, and their release against redemption fine of 30% of their customs value by the adjudicating officer being beyond the scone of the show-cause notice, simply on the ground that the action of the detecting agency to release the trucks was mala fide and not in accordance with the provisions of section 157(2) of the Act, is not lawful. The impugned orders in appeal, whereby the appellants' first appeals were rejected on the same ground as taken by the adjudicating officer, are also not maintainable in the law. I, therefore, accept both the appeals and order the impugned orders to be set aside to the extent of appellants.
C.M.A./10/Tax(Trib.) Appeals accepted.