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Petitioner: ABDUL RAZZAQ VS Respondent: DIRECTORATE GENERAL OF INTELLIGENCE AND INVESTIGATION-FBR and 2 others
Court Name: Customs Appellate Tribunal Judge(s): Ghulam Ahmed Title:ABDUL RAZZAQ vs DIRECTORATE GENERAL OF INTELLIGENCE AND
INVESTIGATION-FBR and 2 others Case No.: Customs Appeal No K-470 of 2011 Date of Judgment:2013-08-13 Reported As: 2013 PTD (Trib.) 2320 Result: Appeal dismissed Judgment ORDER ' GHULAM AHMED, MEMBER (TECHNICAL-II).---By this order, we intend to dispose of Customs Appeal No,K-470 of 2011 filed by the appellant against Order-in-Appeal No,5056 of 2011 dated 23-2-2011, passed by the Collector of Customs, (Appeals), Karachi. 2. Brief facts of the case as reported by Directorate General of Intelligence and Investigation-FBR, Regional Office, Karachi, are that huge quantity of smuggled/non duty paid foreign origin ladies Art Silk Cloth (Made in India) have been dumped at Godown-I Plot No, 176, AI-Habib Textile Mills, Garden West, Karachi for its illegal sale and disposal in open market at Karachi and that there are ample chances that the secreted ladies art silk cloth may be removed from the said godown at any time. In pursuance of the said information, on 20-3-2010, a team of officers was constituted under the supervision at Additional Director (ASO), Intelligence and Investigation-FBR, Karachi to the attempt at dumping/removal of smuggled foreign origin ladies art silk cloth from the aforesaid godown. Accordingly, the constituted team on 20-3-2010 raided the above mentioned private godown. The occupant of the premises introduced himself as Abdul Razaq son of Abdul Ghafar, Working as Munshi with Abdul Qadir. He further disclosed that the aforesaid premises (Godown) has been acquired by one Abdul Qadir on monthly rent, who is the owner of ladies art silk cloth (Made in India). The Additional Director (ASO) in order of conduct search of the godown, in presence of two witnesses served statement under section 163 of the Customs Act, 1969, upon Abdul Razaq son of Abdul Ghafar. Detailed search of the aforesaid godown resulted in the recovery of 54 bales and 5 lose bags, ladies art silk cloth of India origin, weighing 3220 Kgs, having marks of "In Transit to Afghanistan Via Karachi". It is relevant to point out here that during search
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proceedings Abdul Qadir, owner/claimant of the recovered ladies art silk cloth also joined at godown. Both of the aforesaid persons were asked to produce legal import documents in support of lawful possession and import thereof which they failed to produce any legal import documents showing clearance of recovered ladies Arti Silk against filing of goods declaration and payment of duty and taxes leviable thereon: Abdul Qadir, during recording of statement disclosed that he had purchased the recovered ladies Art Silk Cloth from open market (Quetta) without the cover of legal import documents. Since no import documents in respect of ladies art silk cloth of Indian origin, packed in 54 bales and 05 lose bags weighing 3220 kgs., were produced, therefore, the same after preparation of inventory and musheernama duly signed by witnesses were seized in terms of section 168 of the Customs Act, 1969, for violation of the provision of sections 2(s) and 16 punishable under clauses (8), (9), (89) (90) of subsections (1) and (2) of section 156 ibid. Notice under section 171 of the Customs Act, 1969, was served upon Abdul Razaq son of Abdul Ghaffar. The assessable value and duty and taxes leviable seized ladies art silk cloth of Indian Origin, packed in 54 bales and 5 lose bags weighing 3220 kgs has been worked out/calculated as per value provided by Deputy Collector Customs MCCA-III Custom House, Karachi, vide No,S 1/Misc/01/2010-III dated 12-4- 2010. 3. The Deputy Collector of Customs, MCC (Preventive) Customs House, Karachi, did not agree with replies of respondent and passed the Order-in-Original No, 173/2010 (Adj-cell) dated 9-10-2010 reproduced as under:-- "I have gone through the written and verbal submissions of the learned advocate of the claimant owner and the case record. The owner has failed to submit any proof of legal possession of the goods or proof to the effect that the duty and taxed has been paid on the seized foreign origin good. The facts narrated herein above lead to reference that the impugned goods are non-duty paid and without any legal import documents. I, therefore, order outright confiscation of seized ladies art silk cloth of Indian origin packed in 54 bales and 05 lose bogs weighing 3220 kgs for violation of sections 2(s) and 16 of the Custom Act, 1969 punishable under clauses (89) and (90) of section 156(1), ibid read with 499(1)/2009 dated 13-6-2009." 4. Being aggrieved and dissatisfied with the Order-in-Original No,173 of 2010 (Adj-cell) dated 9-10- 2010 the appellant filed on appeal before the Collector of Customs (Appeals) Karachi. The learned Collector vide Order-in-Appeal No,5056 of 2011 dated 23-2-2011, rejected the appeal as under:-- "I have thoroughly examined the entire case record and given very careful consideration to the arguments advanced before me. From the record, I observe that no evidence establishing legal import of the impugned cloth has been brought on record either at the original or the appeal stage. Therefore, I endorse the adjudicating officer's finding that the impugned cloth of Indian origin had been smuggled into the country and in terms of Notification S.R.O. 499(1)/2009 dated 13- 6-2009 read with Notification S.R.O. 566(1)/2005 dated 6-6-2005, the same is required to be confiscated outright. For the foregoing reasons, I rule that the arguments contained in the memo. Of appeal, reproduced at para. 3 above, do not find any support from the evidence on record and the case-law quoted therein is not relevant to the facts and circumstances of the instant case. I, therefore, hold that the impugned order is correct in law and on facts and there is no reason to interfere with the same. The appeal is rejected accordingly." 5. Being aggrieved and dissatisfied with the Order-in-Appeal, the appellant filed the Instant appeal before this Tribunal on the grounds as under:-- (a) That the impugned order of the respondents is not authorised by law in as much as it is based on wrong interpretation of law. (b) That the impugned order of the respondents is against the prevailing departmental practice and thus the same is discriminatory.
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(c) That the impugned order of the respondents is ab initio, illegal, void, mala fide in as much as the same is influenced by circumstances not permitted by law. (d) That the impugned order is based on whimsical ground/ misinterpretation without following the spirit of mandatory provision of law/established departmental practice/procedure and due to the said reason / basis same is discriminatory. (e) That Supreme Court of Pakistan given in identical cases, wherein it is clearly held that the goods which are freely available in the market for presumption regarding the same as of smuggled goods is without lawful authority, operative para of the same is reproduced. "Allegation of smuggling-If the items alleged to be smuggled by the prosecution were freely available in the open market and imports of such goods were not banned in the country, presumption could arise that the goods in question were lawfully brought in the country unless contrary was shown. > - Ms. Sikandar A. Karim v. The State, 1995 SCMR 387 > - Assistant Collector v. Ms. Qazi Ziauddin, PLD 1962 SC 440 > - Ms. Muhammad Saeed v. Collector of Customs, 2005 PTD 1813 (f) That the impugned order of the respondents is also in violative to ruling of Appellate Tribunal Order already passed in identical cases vide Appeals Nos. H-719/2002 and H-720/2002 dated 29- 10-2004 of Ms. Raees Ahmed v. Collector, wherein Honourable Appellate Tribunal setting aside the impugned order of the respondent, operative para of the same is reproduced as under:-- "Smuggle" means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in, force, or evading payment of customs-duties or taxes leviable thereon". (g) That the Honourable Appellate Tribunal in case of Ms. Muhammad Ateeq Paracha, 2005 PTD (Trib.) 135 reliance of ruling of Superior Courts clearly held that in the goods which are freely available in the market, any presumption of their being smuggled goods requires direct evidence which is absent in the subject case, the order passed is patently incorrect and respondents have miserably failed to lead any evidence to prove their case (NB: The concept of shifting of burdens of proof have been ably examined in Ms. Kamran Industries PLD 1996 Kar. 68, 1996 PTD 579, so the action on the part of Directorate of Intelligence is without lawful authority. (h) That the impugned order of the respondents is out of purview/ parameters of show cause notice and due to said reason/basis same is in violative to principles of natural justice as well as rulings of Superior Courts given in identical case of Collector v. Ms. Rahm Din 1987 SCMR P.1840, wherein the impugned order has been treated as without lawful authority, operative para of the same is reproduced as under:-- ' We are of the, opinion that it is not necessary to determine this question of law in the facts of the present case as this petition can be disposed of on the short ground that the order of adjudication being ultimately based on a ground which was not mentioned in the show cause notice, the order was palpably void on the face of it. 1987 SCMR 1840 (i) That the impugned order of the respondents which has been passed after the stipulated period given under section 179 of the Customs Act is in violative to mandatory provision of law/ ruling of superior Courts given in identical cases, wherein it is clearly held that after the stipulated period given under the law no liability can be created against the appellants, operative para of the same is reproduced as under: "If the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure", PLD 1971 SC 61. > - Messrs Super Asia Muhammad Din Sons 2008 PTD 60 > - Messrs Syed Bhai Lighting Ltd. Lahore v. Collector 2009 PTD (Trib.) 1263 > - Messrs A K. International v. Secretary Revenue 2007 PTD 1337
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> - Messrs Ford and Lord v. Deputy Collector, Preventive, Order No, 3056 of 2009 > - Messrs Tariq Irshad v. The State PLD 2006 Kar. 25 > - Messrs Atta Muhammad Qureshi v. Settlement Commissioner, PLD 1971 SC 61 (j) That the respondent clearly misused their discretionary powers while passing a styero type/non-speaking impugned order which is contradictory and in clear negation of principles of natural justice/mandatory provision of law and also against the rulings of Superior Courts given in identical case of Ms. Walayat Ali Mir v. P.I.A. Corporation 1995 SCMR 650, wherein for proper use of discretionary powers a specific criteria is laid down, operative para of the same is reproduced as under: '---Exercise of---Mode---While exercising discretion, Authority should not act arbitrarily, unreasonably and in complete disregard of relevant rules and regulations-Discretion to be exercised has to be judged and considered in the background of facts and circumstances of each case---Discretion is not be exercised on whims, caprices and mood of Authorities---Exercise of discretion is circumscribed by principles of justice and fairness-Authority exercising should take into consideration and advance aim and object of the rule or regulation under which it was authorised to act; it should not act in complete negation of the object of such law, rule, regulation or established policy otherwise it would not be fair, reasonable and just exercise of power---Pre- conditions imposed for exercise of discretion should be honoured and respected unless for valid reasons, they have to be discarded. (k) That the Honourable Federal Tax (Ombudsman) in identical case of Messrs Nadeem Textile Mills Ltd., 2002 PTD 3087 clearly held that the principles of law enunciated by Supreme Court and High Court is (a) binding force on all the citizen and any defiance from its implementation is tantamount to maladministration. (1) That the impugned order of the respondents is also styero type/non-speaking and devoid of reason same is not substantiated in law as laid down by the Superior Court in following identical cases: ' Adamjee Jute Mills Ltd. v. The Province of East Pakistan PLD 1959 SC 2721 ' Gowanea Mohan Sikdar v. Controller Import and Export PLD 1970 SC 158 ' Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173 ' Ms. Muhammad Ibrahim Khan v. Ministry of Labor 1984 SCMR 1014 (m) That the order of the respondents is bad in law in the light of all available facts of the case and thus liable to be set aside. (n) That the appellants also desire to be heard through an Advocate whose name and address is given hereinabove. (o) That the appellants also crave the leave of this is Honourable Tribunal to add and/or amend the aforementioned grounds and or to produce further documents at the time of hearing of this Appeal. 6. The Director of Intelligence and Investigation has submitted parawise comments in reply to the memo. Of appeal, as under:-- (i) That contents of para. 1 of the ground of appeal are misleading and contrary to law. The learned Collector of Customs (Appeals) Karachi, has passed Order-in-Appeal No, 5056 of 2011 dated 23-2- 2011, which covers the factual and legal issues raised before him. The appellant has miserably being failed to establish that the Art Silk Cloth was brought in to the country. ' That contents of para. 4 of the ground of appeal are denied. The learned Collector of Customs (Appeals) Karachi, has passed the Order-in-Appeal No, 5056 of 2011 dated 23-2-2011, after examining the entire case record and giving adequate opportunity of hearing to the appellant which is strictly in accordance with law.
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(iii) That contents of para. 5 of the ground of appeal are misconception and misinterpretation of law by the appellant. The rulings of superior courts reported as "Collector v. Ms. Rahm Din 1987 SCMR 1840" are not identical and relevant to the case of appellant. It is evident on record that the learned respondent No,2, in exercise of the powers under sections 179 and 180 of the Customs Act, 1969, issued Show Cause Notice No, 84 (AdjCell)p/2010 dated 14-5-2010, wherein at para. 2 it has clearly been mentioned that: "Detailed search of the aforesaid godown resulted in the recovery of 54 bales and 5 lose bags of Ladies Art Silk Cloth of India Origin, weighing 3220 Kgs. Having marka of "Intransit to Afghanistan via Karachi". It is relevant to point out here that during search proceedings Abdul Qadir, owner I claimant of the recovered Ladies Art Silk Cloth also joined at godown. Both of the aforesaid persons were asked to produce legal import documents in support of lawful possession and import thereof to which they failed to produce any legal import documents showing clearance of recovered Ladies Art Silk against filing of Goods Declaration and payment of duty and taxes leviable thereon. Abdul Qadir, during recording of statement disclosed that he has purchased the recovered Ladies Art Silk Cloth from open market (Quetta) without the cover of legal import documents." ' The appellant while appearing before the respondents Nos. 1 and 2, did not rebut the aforesaid charge of possessing smuggled/non-duty paid Art Silk Cloth, which have been confiscated in accordance with law. (iv) That contents of para. 6 of the ground of appeal are misconception and misinterpretation of law by the appellant. It is submitted that in terms of clause (89) of subsection (1) of section 156 of the Customs Act, 1969, the possession holder of the smuggled goods is responsible to discharge burden of proof of lawful possession and prove that the goods was legally acquired. Similarly, in terms of subsection (2) of section 156 of the Customs Act, 1969, "where any goods specified in clause (s) of section (2) or an a Notification issued thereunder are seized under this act in the reasonable belief, that an act to defraud the Government of any duty payable thereon or to evade any prohibition or restriction for the time being enforced by or under this act has been committed in respect of such goods, or that there is intent to commit act, the burden of proving that no such act has been 'committed or there was no such intent shall be on the person from whose possession the goods were seized". However, the appellant has failed to discharge burden of proof of lawful possession of the seized/ out rightly confiscated non-duty paid/smuggled Art Silk Cloth. Rather the appellant, subsequent to the seizure of Art Silk Cloth approached, the Director Intelligence and Investigation-FBR, Regional Office, Karachi and submitted an application dated 2- 4-2010, on a stamp paper of Rs,100 (Annex-E) admitting therein that he is not in possession of any legal import documents to establish payment of duty and taxes and requested for -summery adjudication and also showed willingness for payment of duty and taxes leviable thereon. Therefore, in view of the above admission of the appellant, the citations relied upon are not relevant to the instant case. (v) That contents of .Para. 7 of the ground of appeal are misconception and misinterpretation of law. Detailed comments have already been offered in the preceding paras. The case-law quoted by the appellant are not relevant to the facts and circumstances of the instant case. (vi) That contents of para. 8 of the ground of appeal are misconception and misinterpretation of law. The comments have already been offered at in the preceding paras therefore, no further comments. (vii) That contents of para. 9 of the ground of appeal are not maintainable. The learned Adjudicating Authority (Respondent No,2), has passed the Order-in-Original No, 163 of 2010 dated 9-10-2010, in accordance with law. (viii) That contents of para. 10 of the ground of appeal are misconception and misinterpretation of law by the appellant. The learned respondents Nos. 1 and 2, have passed the original order and
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order-in-appeal in accordance with law. The citation reported as Ms. Walayat Ali Mir v. P.1.A Corporation, 1995 SCMR 650 is not relevant to the case against the appellant. (ix) That the contents of para. 11 of the ground of the appeal are not maintainable. The case-law relied upon by the appellant is not relevant. (x) That contents of para. 12 of the ground of appeal are misleading and contrary to law. The respondents Nos. 1 and 2 after examining the case record and law applicable thereto have passed detailed and speaking orders which cover each and every aspect of the case. The appellant has failed to bring on record that foreign origin Art Silk Cloth was cleared on payment of duty and taxes leviable thereon. 7. The appellant has submitted rejoined in response to the comments file by Directorate of Customs Intelligence which is reproduced as under:- (a) That the appellants repeatedly requested that respondent's plea regarding the origin is contradictory with the factual aspect, so permission for 100% examination of the same may kindly be given which will prove that the respondent's plea is not correct and contradictory with the factual aspect of the case. (b) That Honourable Tribunal on dated 25-2-2013 while acceded to appellants request passed an order for examination of the goods in presence of appellants Advocate, respondents instead of proper compliance of aforesaid directives of Honourable Tribunal on dated 25-3-2013 at the time of hearing contended that they have already auctioned the consignment aforesaid plea of respondents is totally absent from their comments of dated 11-1-2013 submitted at the time of hearing on dated 25-3-2013, copy of same has also been provided to us on same date. (c) That aforesaid comments are also silent regarding any auction made on their part as for as their plea regarding issuance of any prior notice regarding the auction of consignment is totally baseless/contradictory with factual aspect of the case nor they provided any documentary evidence which is mandatory under section 215 of the Customs Act as well as section 27 of the General Clauses Act, nor such plea they have taken at any hearing which clearly proves mala fide on the part of respondents and also misuse of discretion without following the spirit of mandatory provision of law/ established departmental practice/procedure followed in identical cases, so respondents aforesaid action which is in violative to established practice is clear discrimination which is not permissible under any provision of law/rules. 8. The subject appeal can only be disposed of on the short point that the goods detained /seized by the official of respondent No, 1 are made in "India"(Indian Origin) which are not importable from India in terms of Appendix-G to paragraph -5 (B)(iii) to the Import Policy Order, 2010-2011 and on the basis of cartons in which the subject goods were packed were containing the marking "in transit to Afghanistan via Karachi since the Advocate of the appellant has taken several factual and legal grounds in stereo typical manner inspite of the fact that those are irrelevant in the instant case. I will like to controvert the same for laying rest such type of grounds often adopted by ,the Advocate of the appellant in similar nature of cases. 9. Notwithstanding to above, it is of vital importance to lay emphasis on the fact that the appellant right from the stage of detention/ seizure and adjudication proceedings failed to place on record the purchase receipt in support of his contention that he has purchased the instant goods from Quetta, instead took the plea that he has neither given A or obtained any cash memo or bill from the seller of the goods, resultant, the charge levelled in the show-cause notice stood established against him by virtue of the fact that he miserably failed to discharge burden of proof laid upon him under section 187 of the Customs Act, 1969 and Articles 117 and 121 of Qanun-e-Shahadat (10 of 1984) and by the Superior Judicial Fora in umpteenth reported judgment. 10. That as regards the contention of the appellant Advocate the respondent No, 3 was not authorized by law in as much as it is based on wrong interpretation of law is without any substance
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as the respondent No, 3 correctly assumed his jurisdiction under section 179 of the Customs Act, 1969 as the goods in question are infact smuggled by virtue of the fact that import of Art Silk Fabric cannot be imported in terms of Appendix-G to paragraph-5 (B)(iii) to the Import Policy Order, 2010-2011 and goods were packed in the carton containing permanent marking "in transit to Afghanistan via Karachi", these two aspects are ample for the confirmation of the facts that the seized goods were not imported legally and nor were purchased from the local market as no fabric imported from India is being sold in Pakistan nor the goods imported in transit for Afghanistan via Karachi are sold, instead the goods imported for Afghanistan in transit via Karachi have to cross the border in terms of 2nd para of para. 6 of Public Notice 16/2000 dated 30-9-2000 within 45 days from the dispatch of copy of ATTI from Karachi to respective Customs Station at Border in terms of para. 6 ibid. In accordance with the laid down procedure .The goods meant for transit to Afghanistan were pilferage in Pakistan either by the importer or the appellant himself, leaving no room for the appellant to take the plea that he bought the goods from open market. To adjudicate such type of cases the authorities rest with respondent No, 3 and in exercise of which he issued show cause notice under section 180 of the Customs Act, 1969 under the power vested to him in section 179 ibid while interpreting the provision of section 2(s) of the Customs Act, 1969, Appendix-G to paragraph-5 (B)(iii) to the Import Policy Order, 2010-2011 and Rules meant for Afghan Transit Trade and Public Notice No, 16 of 2000. 11. That as regard to the interpretation of smuggling and the plea that these goods are freely available in the open market and cannot be termed as smuggled as held in reported judgment Messrs Sikander A. Karim v. The State, 1995 SCMR 387, Assistant Collector v. Messrs Qazi Ziauddin , PLD 1962 SC 440 and Messrs M.S. Muhammad Saeed v. Collector of Customs 2005 PTD 1813 these also lend no help to the appellant as the spirit of these judgments are that the goods should be from the list of freely importable items and not following under the restricted/banned regime of Import Policy Order , if such items were detained/seized , the Supreme Court of Pakistan held that such goods are deems to be duty paid. To the contrary the goods of the instant…
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