KHYBER TEA AND FOOD COMPANY, PESHAWAR VS COLLECTOR OF CUSTOMS (APPEALS), PESHAWAR
2013 P T D (Trib
2013 P T D (Trib.) 327
[Customs Appellate Tribunal, Peshawar Bench]
Before Gulab Shah Afridi, Member (Judicial)
Messrs KHYBER TEA AND FOOD COMPANY, PESHAWAR and others
Versus
COLLECTOR OF CUSTOMS (APPEALS), PESHAWAR and 6 others
Appeal No. Cus.361/PB of 2010, decided on 08/11/2012.
(a) Customs Act (IV of 1969)---
----Ss. 168, 169, 2(s), 6, 179, 187 & 201---Imports and Exports (Control) Act (XXXIX of 1950), S. 3(s)---Sales Tax Act (VII of 1990), Ss.22 & 73---Notification S.R.O. 913(I)/2005dated 30-7-2005---Smuggling---Import of foreign origin black tea---Seizure and confiscation of goods and of vehicle carrying the same by Customs Authorities---Pecuniary jurisdiction---Persons authorized to seize and confiscate goods---Burden of proof---Scope---Accused company impugned seizure and confiscation of consignment of "black tea" by Customs Authorities which was upheld by Adjudicating Officer and Deputy Collector (Appeals)---Contentions of accused inter alia were that accused had purchased goods form a Sales Tax Registered Person and its possession of the same was not illegal and that accused was a bona fide purchaser of the goods in question---Validity---Evidence on record was that accused had purchased the goods (foreign origin black tea) from a "registered person" under the Sales Tax Act, 1990 and that said transaction was made in accordance with S. 73 of the Sales Tax Act, 1990 and in compliance with S. 22 of the Sales Tax Act, 1990; the accused had entered said transaction in the company purchase and stock register (Inward andoutwards)---Accused subsequently sold the goods and had paid the input tax at purchase stage and output tax at supply stage---Goods were seized on 5-12-2009 and show-cause notice was issued to the accused on 5-1-2010 to which accused had replied on 13-1-2010; whereafter the Adjudicating Officer confiscated the goods on 25-1-2010---Adjudicating Officer had, therefore, without providing a further opportunity of hearing to accused, confiscated the goods---Validity---Further opportunity of hearing especially after accused had submitted a detailed reply to the show-cause notice (which required further investigation) was a fundamental and legal right of the accused and therefore, the order-in-original on this score was illegal---Customs Authorities failed to produce any written consent of accused in regard to auction of goods when it was mandatory upon them to obtain written consent of the owner of goods or person from whose possession the samewereseized;under S. 201 of the Customs Act, 1969---Vehicleof accused had not been detected by Anti-Smuggling Unit but insteadby the Police---Vide Customs Notification S.R.O. 913(I)/2005 dated30-7-2005 the powers of Customs Authorities entrusted on Police under S.6 of the Customs Act, 1969 had been withdrawn and Police had no power to detain or seize goods having documents of lawful possession and legal import---Only officers notified under S. 6 of the Customs Act, 1969 could seize goods and give it in custody of Customs Authorities whereas Police officers were neither notified nor authorized officers of Customs within the meaning of Ss. 2(b), 3, 4 and 6 of the Customs Act, 1969---Seizure of goods by Police Officers, in the present case, was therefore illegal---Total value of the goods exceeded pecuniary jurisdiction of Deputy Collector under S.179oftheCustomsAct,1969---No deviation from the pecuniary jurisdiction could be made and if an action had been taken or order had been passed without having competency given under S. 179 of the Customs Act, 1969, same could be declared illegal and without jurisdiction---Deputy Collector, in the present case, wrongly assumed jurisdictionand any transgressions by Customs Authorities from S. 179 of the Customs Act,1969 vitiated the entire proceedings---Investigations did not prove that documents produced by accused were bogusand burden of proof under S. 187 of the Customs Act, 1969 was an evidentiary burden requiring accused to establish a prima facie case only and ultimate burden or legal burden remained on Customs Authorities to prove the case against accused beyond reasonable doubt---In the present case, accused had proved said burden and then responsibility shifted on the Customs Authorities and mere allegations presented by Customs Authorities were not sufficient---Accused produced lawful import and purchase documents for the seized consignment---Customs Authorities seized black tea which was neither a notified item nor was banned and was freely importable and was not prohibited or restricted under the Import Policy---Customs Authorities, had therefore, failed to produce any evidence which could prove that import of said black tea was prohibited or restricted and had thus failed toprovethechargeofsmuggling---Order-in-originalandorder of Customs Collector were set aside and direction was given by the Tribunal to immediately work out payable sales proceeds for the goods payable to the accused---Appeal was allowed, in circumstances.
Nosherwan v. Collector of Customs Peshawar PTCL 2005 CL 378(sic); PLD 1968 Kar. 599; PLD 1969 SC 53; PLD 1977 Lah. 1318; PLD 1975 Kar. 482; 2010 PTD 2086; 2010 PTD 465; 2003 SCMR 1505; PLD 1972 SC 271; 1998 SCMR 1404; 1999 SCMR 412; PLD 1998 SC 64; PLD 1997 Lah. 1; PLD 1995 Kar. 587; PLD 1992 SC 455; PTCL 2003 CL 599(sic); PLD 1975 Kar. 782; 2005 PTD 23; 2008 PTD 1024 and 515; 2009 PTD 500; 2006 PTD 2177; 2006 PTD 534; PLD 1971 SC 124; 2006 SCMR 783; 2007 SCMR 729; 2007 SCMR 1835; 2009 PTD 642; 2006 PTD 703; 2000 YLR 1108; 2005 PTD 1813; 1983 PCr.LJ 1351; SAO No.175 of 2004 dated 11-10-2004; 2001 PTD 2097 = 2001 SCMR 1376 and 2005 PTD (Trib.) 135 rel.
(b) Customs Act (IV of 1969)---
----S. 201---Auction of confiscated goods---Failure of Authorities to produce written consent of the owner or person from whose possession goods were seized---Effect---Mandatory for Customs Authorities to obtain written consent of the owner of goods or person from whose possession goods were seized.
Nosherwan v. Collector of Customs Peshawar PTCL 2005 CL 378(sic) rel.
(c) Customs Act (IV of 1969)---
----Ss. 6 & 168---Notification S.R.O. 913(I)/2005 dated 30-7-2005---Entrustment of functions of Customs officers to certain other officers---Seizure of goods under S. 168 of Customs Act, 1969 by Police Officials---Validity---Vide Customs Notification S.R.O. 913(I)/2005 dated 30-7-2005, the powers of Customs Authorities entrusted on Police under S. 6 of the Customs Act, 1969 had been withdrawn and Police had no power to detain or seize goods having documents of lawful possession and legal import---Only officers notified under S. 6 of the Customs Act, 1969 could seize goods and give the same in custody of Customs Authorities whereas Police officers were neither notified nor authorized officers of Customs within the meaning of the Customs Act, 1969.
PLD 1968 Kar. 599; PLD 1969 SC 53; PLD 1977 Lah. 1318 andPLD 1975 Kar. 482 rel.
(d) Customs Act (IV of 1969)---
----S. 187----Burden of proof----Nature----Burden of proof as laid down under S. 187 of the Customs Act, 1969 was an evidential burden requiring the accused to establish only prima facie case and ultimate burden or legal burden remained on Customs Authorities to prove the case against the accused beyond reasonable doubt.
2000 YLR 1108 and 2005 PTD 1813 rel.
(e) Customs Act (IV of 1969)---
----Ss.157 & 158----Prevention of smuggling---Detention and seizure---Practice and procedure to be followed, stated.
(f) Jurisdiction----
----Elementary principle that if a mandatory condition for exercise of jurisdiction by court was not fulfilled, then entire proceedings, which follow suffer from illegality and were without jurisdiction.
PLD 1971 SC 124; 2006 SCMR 783; 2007 SCMR 729; 2007 SCMR 1835 and 2009 PTD 642 rel.
Pir Alam Shah, Consultant along with Atiqur Rehman, Advocate and Fakhr-e-Alam Managing Director for Appellants.
Naseer Khan, Superintendent Customs for Respondent.
Date of hearing: 12th September, 2012.
JUDGMENT
GULAB SHAH AFRIDI, MEMBER (JUDICIAL).---This appeal filed by Messrs Khyber Tea and Foods Company (appellant here-in) is against the Order-in-Appeals Nos.465-66 of 2011 dated 30-6-2010 (issued on 22-9-2010) passed by the learned Collector Custom (Appeals), Peshawar, whereby he while maintaining the Order-in-Original No.40 of 2010 dated 25-1-2010, dismissed the appeal.
2.Brief facts of the case are that Customs Anti-Smuggling Unit, Nowshera in pursuance of prior information to the effect that foreign origin black tea would be smuggled to down country vide Jehangira-Ambar Road through a truck bearing Registration No.9295/Peshawar. A raiding party was constituted which held naka at Jehangira-Ambar Road near Chota Lahore Distrtict Swabi. On 5-12-2009, the suspected vehicle was seen coming from Jehangira side which was stopped for checking. Cursory search of the vehicle revealed presence of foreign origin black tea (marked as in transit to Afghanistan via Karachi), therefore, the vehicle was brought to the office of Anti-Smuggling Unit, Nowshera where thorough search of the vehicle resulted into the recovery of 150 bags of F/O black tea weighing 10750 kilograms. On demand, the occupants of the vehicle namely Chaman Khan son ofKhan Khel, R/O Kandi Nasir Tehsil and District, Peshawar and Shahid Khan son of Ghulam Jilani, R/O Urmar Payan, Tehsil and District, Peshawar failed to produce any proof of legal import/lawful possession of the goods so recovered. Therefore, the Customs Staff seized the foreign origin smuggled black tea along with vehicle under section 168 of the Customs Act, 1969 for violation of sections 2(s), 16, 157 and 178 ibid read with section 3(1) of Imports and Exports (Control) Act, 1950 punishable under section 156(1)(8) and (89) of the Customs Act, 1969 read with section 3(3) of the Imports and Exports (Control) Act, 1950. Subsequently, after completion of the requisite formalities, the matter was placed before the Deputy Collector Customs (Anti-Smuggling Division), Peshawar, who vide his Order-in-Original No.40 of 2010 dated 25-1-2010 ordered as follows:--
"I have gone through the written/verbal submissions of the respondent and perused the record. The contention of the respondent that the black tea is duty paid is incorrect as the documents produced in support of his above contention have no relevancy with the present case. The seized tea bags are duly marked with the words "in Transit to Afghanistan via Karachi" meaning thereby that the same are smuggled one. The charges levelled in the show cause notice, therefore, stand established beyond any shadow of doubt in the absence of evidence to the contrary. I, therefore, order outright confiscation of the seized goods in terms of section 156(1)(8)(69) of the Customs Act, 1969 read with section 3(3) of the Imports and Exports (Control) Act, 1950 in terms of S.R.O. 499(I)/2009 dated 13-6-2009 the smuggled goods cannot be released on payment of duties/taxes in lieu of confiscation. The vehicle bearing Registration No.P-9295 is also liable to confiscation having been used for transportation of offending goods in commercial quantity for which the owner/driver could not offer any plausible explanation. However, a lenient view is taken and an option is given to the owner to redeem the same against payment of 20% fine of the Customs value amounting to Rs.1,40,000 (Rupees one forty thousands only) in terms of S.R.O. 499(I)/2009 dated 13-6-2009. This option is given with warning that if the vehicle is intercepted for the 2nd time for offence of smuggling the same will be liable to outright confiscation."
3.Aggrieved of the above order, the appellant filed appeal before the learned Collector of Customs (Appeals), Peshawar who vide Order-in-Appeals Nos.465-66 of 2011 dated 30-6-2010 (issued on 22-9-2010) while maintaining the Order-in-Original No.40 of 2010 dated 25-1-2010, dismissed the appeal. Hence the instant appeal on the following grounds:--
(1)That, the entire action of the respondent is illegal without lawful authority and of no legal effect;
(2)That, the case with initially detected by the police who were not competent to do so in term of section 6 of the Customs Act, 1969;
(3)That, it is proved beyond any shadow of doubt that no assistance was ever sought by the respondent from the police in terms of section 7 of the Customs Act, 1969;
(4)That, the seized/confiscated goods are lawfully imported and bonafidely possessed whose transaction was made under the provisions of the Sales Tax Act, 1990 which record can be examined and verified if so required;
(5)That, the seized goods are freely importable and are neither placed on the negative list of Appendix A, nor placed on restricted list of Appendix B of the existing Import Policy Order and as such do not attract the provisions of section 16 of the Customs Act, 1969 which provisions of law have in correctly been applied by the respondent when they failed to produce any notification issued by the Federal Govt. under which tea has been prohibited or restricted;
(6)That, heavy onus lies upon the respondent to prove that the seized goods were brought into the country through unauthorized route which they could not discharge when the appellant has already discharged his onus in term of section 187 of the Customs Act, 1969 by producing legal documents for lawful import and bona fide possession of the seized/confiscated goods;
(7)That, the respondent has not made known to the appellant the CIF value of the seized/confiscated goods and duty/taxes leviable thereon. As per the seizure report, the CIF value of the seized/ confiscated goods comes to Rs.36,6,790 and duty and taxes if calculated thereon come to more than Rs.13,20,169 which exceeds the powers of the respondent within the meaning of section 179(1) of the Customs Act, 1969;
(8)That, the respondent No. 1 has failed to take cognizance of the fact that Recovery Memo. prepared by the respondent itself speaks about the seizure of goods by the Police. In case it was not the position as has been admitted by the respondent, then why they stated that the truck seized was parked at Police Station Chota Lahore Swabi;
(9)That, no where under the Customs Act, 1969 it has been provided that if the documentary evidence it regard to lawful import and bona fide possession is not produced, the subsequent production of any documents would be illegal and such documents would not be entertained. There are a number of order-in-original where documents were produced at the time of hearing and were accordingly accepted;
(10)That, besides production of valid sales tax invoice, purchase receipt/voucher regarding purchase of empty bags was also produced which empty bags were purchased in the local market and used for the re-packing of the seized/confiscated black tea and further more the case property was never examined the respondents Nos. 1 and 3 to determine its status;
(11)That, the seized/confiscated goods belonged to the appellants and nobody claimed ownership of the goods as the Recovery Memo, seizure Report and the show-cause-notice issued in the instant case do not exhibit that the ownership of the goods was claimed by anybody nor any documentary evidence has been produced;
(12)That, after production of valid sales tax invoice and Bilties regarding purchase, transportation and sale of the seized/ confiscated goods, the appellants are not legally bound to produce Goods Declaration regarding its importation Nevertheless, the Goods Declaration was also produced to the respondent, respondent No. 3 and respondent No. 1 who deliberately ignored this very important aspect;
(13)That, the goods were travelling with sales tax invoice and Goods Declaration as well but the respondent, respondent No.3 and respondent No.1 failed to accept them scaring that these invoices and other documentary evidences would ultimately prove the contention of the appellants;
(14)That, the respondent No.3 and respondent No.1 has totally ignored the affidavits given by the driver of the truck and salesman of the Company in which they affirmed on oath that the goods in question belonged to Messrs Khyber Tea and Food Company and not anybody else which affidavits were never controverted by submitting counter affidavits or any other documentary evidence contrary to the same;
(15)That, the respondent No. 1 has incorrectly asserted that the wakalatnama was not signed by the driver of the truck and the salesman nor any power of attorney was produced on their behalf whereas in actual fact, the concerned persons are driver of the truck and salesman of the company from whose possession the goods in question were seized and they has affirmed and confirmed before the respondent No. 1 that the seized goods belonged to Messrs Khyber Tea and Food Company;
(16)That, the appeal failed by Messrs Khyber Tea and Food Company before the respondent No. 1 was accepted and entertained and above all, the replies submitted in defense were critically analyzed by the respondent, respondent No. 3 and respondent No. 1 and order-in-appeal has been endorsed to then which is in other words admission of the appeal failed before them. In case the respondent No. 1 was of the view that the appeal filed by Messrs Khyber Tea and Food Company was not failed by driver of the truck and salesman of the Company and the goods did not relate to Messrs Khyber Tea and Food Company Peshawar, then why the appeal in question was admitted for regular hearing;
(17)That, when the appellants had proved beyond shadow of doubt that the seized/confiscated goods were lawfully imported and bonafidely possessed, then assuming in such circumstances that there was an invitation of the appellants to misguide or hoodwink the authority would amount to stretching law to bring a normal act of an appellant in the fold violation;
(18)That, the attitude on the part of respondent No. 1 and respondent No. 3 was not desirable as they were supposed to administer justice. They could send the documents for verification purpose which they failed to do so;
(19)That the respondent No. 1 dealt with the appeal in very perfunctory manner and disposed of the same by a slipshod order devoid of any reasons and grounds;
(20)That, anything smuggled could be apprehended at the border or even in the
interior of the country provided it was smuggled. At the border; it was very easy to say that anything was being smuggled within the purview of section 2(s) of the Customs Act, 1969. But heavy onus lay for the respondent to prove that a thing was smuggled if apprehended from in hand;
(21)That, burden of proof as laid down under section 187 of the Customs Act, 1969 is "evidential burden" requiring the accused only establish a prima facie case and ultimate burden is on the Customs Authorities to prove the case against the accused beyond reasonable doubt.
4.In rebuttal, the respondents filed their para wise comments to the following effect:--
(i)Repetition in any form either spoken or written is bad in law and undesired by superior courts.
(ii)Special law always prevail over the general law. Customs Act, 1969 is special provision and burden of proof shall on such person who acquired possession of or in any way concern in or dealing with smuggled goods. (sections 187 and 156(89) Customs Act, 1969)
(iii)The powers of police are not statutory, but powers are delegated to it under section 6 of the Customs Act. There is no bar on any law enforcing agency to seize contrabands then to give it in custody and care of Customs Authorities without unnecessary delay as laid down in section 169 of the Customs Act, 1969 and this has properly been done in the case in hand.
(iv)The seized goods in the instant case have properly been dealt with and proper seizure report has been prepared in accordance with the procedure laid down there in.
(v)Investigation has been conducted in its true letter and spirit and the goods are found to be "Transit Goods to Afghanistan" and not good for home consumption so for the appellant has not discharge his liability nor he has produced any lawful documents in this regard.
On Facts:--
(1)Incorrect, infact the goods were seized by the Customs Authorities.
(2)Incorrect.
(3)Incorrect.
(4)Correct.
(5)Correct.
(6)Correct.
(7)Yes.
(8)Yes
(9)Incorrect due consider in given to submission and case record has properly been perused.
Part - B.
(1)Incorrect. Transit goods cannot be purchased against any proper receipt. 2, 3, 4, 5 and 6 IPSI Dixit (Dogmatic statement).
(7)No concern therefore, no comments.
8, 9 10. Incorrect procedural lapse and technicalities cannot debar a statutory authority from discharge of legal duty and the decision thereof.
(11)Incorrect, proper procedure has been adopted.
(12)Goods are perishable and losses blended quality, diminishing its value, therefore, there is no bar to put such gods for auction under section 169(a) Customs Act, 1969 (a), (b), (c) (mere repetitions).
(13)Repeated (no need to comment)
(14)Repeated (no need to comment)
(15)After thought, therefore, not viable
(16)After thought, therefore, not viable
Para - C
(1)Illegality has not been pen pointed.
(2)Repetition.
(3)Not relevant therefore, no comments.
(4)Incorrect, the goods are of Afghan Transit Trade.
(5)Non - Notified goods brought into the country through unspecified route are treated to be notified goods.
(6)The goods are of Afghan Transit, therefore there are "reasonable suspicious" that the goods have been brought through undeclared routes.
(7)Procedural lap has no effect on legal status or position of an authority.
(8)No illegality whatsoever.
(9)Due consideration has been given to the documents.
(10)After thought.
(11)Correct.
(12)Due consideration and opportunities have afforded to the appellant.
(13)Repetitions
(14)Repetitions
(15)Repetitions
(16)Full opportunity of hearing has been given, case has been decided on merits.
(17)Incorrect.
(18)Incorrect.
(19)Incorrect.
(20)Totally incorrect, reference can made to section 156(89) of the Customs Act.
(21) Incorrect, prosecution can seize any goods even on reasonable suspicious.
Para - D
(1)Incorrect, infact seizure has been effected by Customs Authorities and not a single document of seizure has been signed by unauthorized person, even an unauthorized person has not been cited as witness, therefore, ruling of apex court is not applicable to this particular case.
(2)The value or assessment of transit goods cannot be ascertained being not goods for home consumption, the value of the seized goods has been assessed by appellant himself and not by appraiser. Therefore, question of pecuniary jurisdiction isfutile.
5.During the course of arguments, learned counsel for the appellant contended that the goods were purchased from a registered person by appellant and sold to unregistered person under the provisions of the Sales Tax Act, 1990 and as such the appellant/registered person was not legally bound to produce proof of import in shape of Goods Declaration as no such provision exists under the Sales Tax Act, 1990. He further contended that the seizure in this case was made by the local police of Police Station, Chota Lahore, District: Swabi, who have no power to make such seizure under the Customs Act, 1969. He stated that the appellant repacked the said quantities of the black tea in empty bags and the appellant purchased the empty bags from one Haji Didar Gul Safi Bardana Merchant. The receipt dated 3-12-2009 of the empty bags is available on record on page 56, annexure (V). He submitted that the appellant repacked he same in paper bags, plastic bags covered with jute bags for the safety of said black tea because tea is a sophisticated item it can easily attract the smell of other smell producing items and from the liquids. He proceeded on to say that the importer i.e., Messrs SPATCO'S Karachi sent the seized blended black tea to the appellant in plastic bags which carries the name of importer's company along with the address and phone numbers etc. If the appellant sold out the tea in the same bags of importer, nobody will buy the tea from the appellant, the dealer/buyer will purchase the tea directly from Messrs SPATCO'S Karachi. Counsel for the appellant further contended that no mark of "In Transit to Afghanistan" was available on the bags as the appellant was well known to the customs staff that he is dealing in the legal business of tea having all the related documents and having a registered firm, therefore, to deprive from the legal goods, they without having the said mark, mentioned the mark "In Transit to Afghanistan" in the recovery memo. as well as in the seizure report mere to bring the hardship on the part of the appellant and made a case for confiscation, which fact was brought in the notice of Adjudication Officer, while submitting reply to the show-cause notice. Inspite to confirm the stance of the appellant without further investigation and physical examination the tea was confiscated and put in auction by the Deputy Collector (Auction) without schedule auction to disturb the case property from any examination if ordered by the high-ups. He lastly prayed for release of the black tea unconditionally.
6.On the other hand, learned DR opposed the contention of the counsel and submitted that the tea in question is smuggled into the country through unauthorized routes of "In Transit to Afghanistan" and the documents produced by the appellant is not rebutted to the tea in question, therefore, the same has rightly been confiscated by the lower fora. He lastly prayed for dismissal of the appeal.
7.From the arguments advanced by both sides and perusal of the show cause notice, the following issues arise from the fact and circumstances of the case alleged in the show cause notice No.Cus/AS/Adj/2009/12 dated 5-1-2012:-
(i)Whether lawful possession of the black is proved by the appellant?
(ii)Whether the allegation of "In Transit to Afghanistan" is proved by the Seizing Agency?
8.I have examined the case record and considered the written as well as verbal submissions of both the parties. It transpired from the record that the appellant purchased blended black tea 11200 Kgs, 7480 Kgs and 10000 Kgs against purchase sales tax invoices Nos. 223 224 and 225 all dated 1-12-2009 from Messrs SPATCO'S 215 Panorama Center-I Fatima Jinnah Road, Karachi, (Annexure G, H and I), at pages 40 to 42 of the appeal, the payment of duty and taxes leviable thereon was made through National Bank Payment Challans (Annexure-J) at page 43. After purchasing the said black tea, the appellants booked the same through Munir Goods Transport Co. Karachi vide Bilties Nos. 2207, 2208 and 2209 for Peshawar (Annexure K, L and Mat pages 44 to 46).
9.As per record, the appellant paid Rs.1590000 through Fund Transfer Application No.40449804, dated 11-1-2010, Rs.2625480 through Fund Transfer Application No. 40449979 dated 14-1-2010, Rs.637680throughFundTransferApplicationNo. 40449978dated14-1-2010, Rs.2000000 through Fund Transfer Application No. 40449980 dated 20-1-2010, Rs.1500000 through Fund Transfer Application No. 40449981 dated 21-1-2010 to Importer Messrs SPATCO'S Karachi through MCB Chowk Yadgar Branch, Peshawar which was online transferred to the account of Importer i.e. Messrs SPATCOS Karachi in MCB Jodia Bazar Branch Karachi in compliance of section 73 of Sales Tax Act, 1990. In this respect the appellant produced the copies of above mentioned transfer applications and Bank statement, which prove that the transaction has been made between the Messrs SPATCOS Karachi and Messrs Khyber Tea and Food Co. Peshawar. According to section 73 of Sales Tax Act, 1990 it is mandatory for the registered person/company/firm to make transaction through bank. In the present case the appellant has successfully proved that he has made transaction with Messrs SPATCO'S through Bank. If the registered person does not made transaction through bank their whole transaction would be illegal and any purchase invoice issues in such situation, it would be considered a flying invoice which has no value in the eye of law.
10.In compliance of section 22 of Sales Tax Act, 1990, the appellant entered the same in his Company's Purchase and Stock (Inward and Outward) Register for the month of December, 2009. Subsequently the appellant sold out the said black tea 50 bags weighing 3400 Kg to Gohar Ali Main Bazar Hawaliyan against valid supply sales tax invoice No. 27 dated 4-12-2009, blended black tea 10 bags weighing 750 Kg to Nasir Paracha Main Bazar Haripur against valid supply sales tax invoice No. 28 dated 4-12-2009, blended black tea 30 bags weighing 2040 Kg against valid Supply sales tax invoice No. 29 dated 4-12-2009 to Amir Khan Usman Market Hawailian, blended black tea 30 bags weighing 2040 Kg to Faheem Hassan Hawailian against valid Supply sales tax invoice Nos.21, 22, 23, 24, 25 and 26, all dated 4-12-2009 placed at pages 49 to 54 (Annexures P,Q,R,S,T,U). The appellant in compliance of section 23 of Sales Tax Act, 1990 issued the said supply Sales Tax Invoices and entered the same in supply Register for the month of December, 2009 (copy is Annexure V), at page 55 in compliance of section 22 of Sales Tax Act, 1990. The appellants totally sold out 8230 Kg blended black tea to the aforesaid dealers. It is evident from the monthly sales tax return, purchase and sales summary for the month of 12/2009 electronically issued by the FBR produced by the appellant shows that the appellant has paid Input tax of Rs.1143680 at purchase stage and paid Output tax Rs.1196454 at Supply stage (copy is Annexure W at page 56). The appellant also produced summary of sales invoices of Messrs SPATCO'S Karachi electronically issued by the FBR which also proves that the appellant has purchased the said black tea against 3 sales tax invoices, the value of which was Rs.7148000 and sales tax of Rs.1143680 along with 1% SED i.e. Rs.71480.
11.It has further been observed that the tea in question was seized on5-12-2009 while the seizure report submitted before the Additional Collector on 11-12-2009. The show cause notice issued on 5-1-2010 and the appellant submitted his writtenreplytotheshow-causenoticeon13-1-2010. The adjudication officer without providing an opportunity of hearing to the appellant confiscated black tea vide Order-in-Original No.40 of 2010 dated 25-1-2010. Providing further opportunity of hearing to the appellant (especially by submitting the detailed written reply to the show cause notice, which requiring further investigation), was the fundamental and legal right of the appellant but the learned adjudication officer did not provide the further opportunity of hearing to the appellant thus violated the settled principle of law i.e. nobody could be condemned unheard. Therefore, the order in original passed by the learned Deputy Collector (Adjudication) is contrary to the said principle of law. On this score too the order in original is illegal and has no value in the eye of law.
12.It has also been observed that the Customs authorities have auctioned the tea in question without giving notice under section 201 of the Customs Act, 1969. The Customs authorities have been failed to produce any written consent of the appellant in regard with the auction of the tea in question. However it is mandatory for the Customs authorities to obtain written consent of the owner of goods or the person from whose possession the same were seized. Where such notice was not given and the written consent of the owner of the goods not obtained the sale proceeds were avoided to the owner of the goods despite the fact that the goods have already been confiscated. Reliance takes place on judgment of Hon'ble Peshawar High Court Peshawar SAO No. 25 of 2002 decided on 18-3-2003 titled Nosherwan v. Collector of Customs Peshawar. PTCL 2005 CL 378(sic) Supreme Court of Pakistan.
13.The record of entry of vehicle bearing Registration No. P-9295 issued by the National High Way Authority wherein it was mentioned that the said vehicle was entered on motorway through Peshawar Toll Plaza on 4-12-2009 at 11:23:47 a.m. The words "parked at Police Station Chota Lahore" mentioned in the recovery memo. clearly shows that the tea in question as well as the vehicle was not initially detected by the Anti-Smuggling Unit Nowshera at Ambar Jahangira Road but by the Police of Police Station Chota Lahore on 4-12-2009. In the year 2005 by a Customs Notification S.R.O. 913(I)/2005 dated 30-7-2005, the Federal Government has withdrawn the powers of Customs officers to Police entrusted under section 6 of Customs Act, 1969. In the light of said S.R.O. the Police have no power to detain or seize the goods having the documents of lawful possession and legal import. The officers notified under section 6 of the Customs Act, 1969 can only seize the goods and give it in the custody and care of the Customs authorities whereas, the Police officers neither notified nor authorized officers of customs within the meaning of sections 2(b), 3, 4, and 6 of the Customs Act, 1969 to detect or detain the goods and handover the same to the customs authorities and any such action taken by them within the provisions of the Customs Act, 1969 is illegal. The detention/ seizure of goods by un-notified and unauthorized officers have been termed as an illegal detention/ seizure. In case of an illegal seizure, goods are to be restored to the person from whose possession they were seized. Reliance takes place on PLD 1968 Kar. 599, PLD 1969 SC 53, PLD 1977 Lah. 1318, PLD 1975 Kar. 482.
14.Moreover, ironically the respondent on one hand is of the view that the seized truck was parked at Police Station Chota Lahore and on the other hand it is of the view as incorporated in the seizure report and the show-cause-notice that on information the seized truck was stopped for checking at Jahangira Amber Road. Contradiction of the statements of the respondent seconds the contention of the appellant that the goods were never seized on road instead these were detected by the police staff and the seized truck was parked at Police Station Chota Lahore which was subsequently handed over to the respondent along with the seized goods for further necessary legal action if so required.
15.So far as pecuniary jurisdiction of the adjudicating officer i.e. the Deputy Collector Customs is concerned according to subsection (1) of section 179 of the Customs Act, 1969. The pecuniary jurisdiction of Deputy Collector is not exceeding Eight Hundred Thousand Rupees. I have carefully examined the seizure report submitted by the Inspector Customs ASU Nowshera. In column 6 of the seizure report the said Inspector mentioned the CIF value of the seized goods as Rs.2893320. However the total duty and taxes involved in the present case is:
CIF value:Rs.2893320
10% CD:Rs.289332
17% ST: Rs.541051
5% IT: Rs.186185
1% SED:Rs.39099
Total Duty and Taxes:Rs.1055667
Total value of duty and taxes is Rs.1055667 which exceeds the pecuniary jurisdiction of Deputy Collector. In view of admitted position of pecuniary limit the jurisdiction could only be exercised by the Customs officersaccording to provision of section 179 of Customs Act, 1969 and no deviation could be made on one or any other pretext and if the action have been taken or order had been passed without having the competency given under section 179 of the Customs Act, 1969 the same could be declared illegal, unlawful and without jurisdiction. The Deputy Collector (Adjudicating Officer) therefore wrongly assumed the jurisdiction by issuing the show cause notice and decision by him is illegal, unlawful and without jurisdiction. Reliance placed on 2010 PTD 2086, 2010 PTD 465, 2003 SCMR 1505, PLD 1972 SC 271, 1998 SCMR 1404, 1999 SCMR 412, PLD 1998 SC 64, PLD 1997 Lah. 1, PLD 1995 Kar. 587, PLD 1992 SC 455, PTCL 2003 CL 599(sic), PLD 1975 Kar. 782, 2005 PTD 23, 2008 PTD 1024 and 515, 2009 PTD 500, 2006 PTD 2177 and2006 PTD 534. It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffers from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revisions equally suffer from illegality andare without jurisdiction. Reliance placed on (PLD 1971 Supreme Court 124, 2006 SCMR 783, 2007 SCMR 729, 2007 SCMR 1835 and 2009 PTD 642). Where a particular court or forum has exclusive jurisdiction to proceed with a case, any attempt by any other forum to take cognizance of the matter or to institute proceedings would render cognizance and proceedings void ab-initio and of no legal effect. According to subsection (1) of section 179 of the Customs Act, 1969, jurisdiction and powers of the officers of customs in terms of amount of duties and other taxes involved, have been determine and any transgressions by the Authority is illegal and vitiates whole the proceedings in view of a number of judgments passed by the Superior Courts. Reliance takes place on 1996 MLD 434, 1999 PTD 4126, 2006 SCMR 1713, PLD 1958 SC 104, PLD 1973 SC 326, PLD 2002 SC 630, 2003 SCMR 59, 2004 SCMR 28 and 2004 SCMR 1798).
16.I have perused the record produced by the appellant which reveals that the tea in question was legally imported and the appellant is the bona fide purchaser and later on he sold out the tea in question. The documents also show that the appellant has paid the relevant duty and taxes both on purchase as well as Supply stage. However, the Collector Appeals during the hearing of appeal on different dates i.e. 1-3-2010, 11-3-2010, 27-3-2010, 9-4-2010, 23-4-2010, 6-5-2010, 19-5-2010and4-6-2010 directed the seizing agency/department to verify all the documents produced by the appellant at appeal stage but the seizing officer was least to obey the direction and to verify the documents from the quarters concerned. The initial burden of proof was on the appellant to defend the allegations by sound and convincing evidence in accordance with the provisions of section 187 of the Customs Act, 1969. The appellant produced the said documents in such a situation, burden of proof had shifted and it was the duty of respondent to prove through evidence that the documents were fake, forged or irrelevant. Now-a-days there is a computerized system installed in each and every office of the customs authorities to facilitate them for the purpose of verifying the documents presented to them. Despite the directions of Collector Appeals the seizing officer did not verify the same. However, the facility of computerized system is available in his office, shows the intention of the seizing officer he was willing to get decision in his favour. The purpose of investigation is not only to collect the evidence against the accused, it is also the purpose of investigation to collect the evidence in regard with the innocence of the accused. If he verified the same, then the adjudication officer as well as the Collector Appeal came to a clear cut decision. The order in original as well as order in appeal did not show that the documents produced by the appellant were found bogus. Reliance is placed on 2006 PTD 703.
17.It is a settled law that burden of proof as laid down under section 187 of the Customs Act, 1969 is evidential burden requiring the accused to establish only prima facie case and ultimate burden or legal burden remains on customs authorities to prove the case against the accused beyond reasonable doubt. From this it appears that the appellant had proved the burden of law as envisaged in section 187 of the Customs Act, 1969 and the said responsibility was then shifted to the respondent to prove its case. Mere allegations of the respondent that the presented documents are irrelevant are not sufficient. It was upon the respondent to prove its stance by cogent and convincing evidence which is not so in the case in hand. The appellant was in possession of purchase sales tax invoices Nos. 223, 224 and 225 all dated 1-12-2009 (duly issued by importer i.e. Messrs SPATCO'S Karachi) GD CRN No. I-HC-867123-020109 and Supply sales tax invoices Nos. 27, 28, 29 and 30 all dated4-12-2009 (issued by appellant i.e. Messrs Khyber Tea and Food Co. Peshawar) regarding the legal import, purchase and Supply of black tea recovered from the possession of salesman of appellant. The said documents had not been got adjudged and verified to be not genuine. Action of the customs department in seizing the goods and thereafter confiscating the same was therefore, illegal and void. Reliance takes place on 2000 YLR 1108, 2005 PTD Supreme Court of Pakistan 1813.
18.In most of the cases, the seizing agencies do not follow the law. If the seizing agencies acted upon the law it would have been easy for the courts too, to decide the cases expeditiously. The law and procedure is very clear in cases of detention and seizure. The seizures are not made on mere suspicion and that no seizure is made without adequate material. Furthermore, where adequate documents are not found with the consignment but are claimed to be available, it should be more appropriate to detain the consignment under section 17 of the Customs Act, 1969 and called the documents under section 26 of the Customs Act, 1969 within 7 days instead of making seizure. Before making the seizure the detecting agency must require to verify the documents from the concerned quarters and also to have check the purchase, Stock and Supply registers of a registered person or company/firm. The legislature has also made the issuance of sales tax supply invoice mandatory for a registered person because it is the outcome of the purchase, stock and supply quantity, value exclusive of tax and amount of sales tax and value inclusive of tax. Whenever a sales tax invoice is issued it means that the Customs duty has already been paid. Once the goods imported into the country for home consumption and issued a sales tax invoice in respect of that goods the provisions of Customs Act, 1969 are not applicable. In case where a consignment of registered company or firm is moving under the shadow of legal documents and if the detecting agency has any doubt in regard with the payment of relevant duty and taxes should detain the documents and left the consignment to its destiny. Then the detecting agency should verify the detained documents from the concerned quarters and if the same proved as genuine, should stop its investigation. If the same appeared fake and not genuine, then proceed according to the law. If the consignment bearing the sales tax invoice issued by a registered person then the detecting agency despite of detention, directly seizure of the goods, such action of detecting agency would be illegal and nullity in the eye of law.
19.It is also on record that the salesman namely Bilal Ahmed Jan and the driver namely Tariq Khan submitted their affidavits wherein they have affirmed on oath that the goods in question belong to Messrs Khyber Tea and Food Co. Peshawar and nobody else. In the said affidavit, they have also stated that initially the Police Staff/ S.H.O. of Police Station Chota Lahore have detected the goods and vehicle on Motorway and demanded illegal gratification. In rebuttal, there is no counter affidavit on behalf of the detecting agency to the effect that the goods in question seized by the Customs staff do not belong to the appellant as well as initially detecting of the goods by the Customs Staff. As such contents of the affidavit submitted by the appellant are true and stands admitted. The Superior Courts have also decided number of cases on this ground too. The Government has deputed the local police on motor way only for the purpose of providing security to the travellers. The local police has no authority to stop and search the vehicles and pockets of the travellers on motorway.
20.From the available record it is established that the appellant is doing business of black tea and dully registered with the Sales Tax Department, Income Tax Department, Sarhad Chamber of Commerce and Pakistan Tea association, besides maintain all the relevant record as required under the law. Possession of huge quantity of black tea by the appellant does not create a suspicion that the recovered black tea is smuggled one. Reliance is placed on 1983 PCr.LJ 1351 which reads as "possession of a very large quantity of gold with person dealing in that business does not create suspicion that gold is smuggled.---There is no evidence which can give rise to a reasonable belief for suspicion that gold found in possession of the appellant was smuggled. Appellant and his father were engaged in the business of gold and were members of Sarafa Bazaar Association. The presence of a very large quantity of gold in his possession could hardly be regarded as suspicious circumstances. There were no markings on the gold bars. The fineness of the gold was 999.1. Such gold was available in the local market. In view of these circumstances there was no basis for entertaining any belief or suspicion that the gold found in possession of the appellant was possibly smuggled."
The appellant has also produced his previous record (electronically issued by Regional Tax Office Sales Tax Wing Peshawar) which shows that the appellant is regularly paying Monthly Sales Tax since December, 1999 till April, 2011. The appellant also submitted the summary of duty and taxes on import stage from January, 2011 to October, 2011 which shows that the appellant has paid Rs.59133796 in Government Exchequer, which means that the appellant is playing a productive role in promotion of state economy.
21.On perusal of record, the appellant produced lawful import and purchase documents for the seized consignment. The import documents are not disputed and the respondent is roaming with allegation of irrelevant documents produced. Reliance is placed on S.A.O. No. 175 of 2004 dated 11-10-2004, wherein his Lordship Mr. Justice Nasir-ul-Mulk, has concluding as under:--
"The sales tax invoice has only mentioned the tea as black tea as distinguished from green tea. In the sales tax invoice the origin of the tea need not be mentioned. The tea imported had been repacked by the importer for distribution to the retailers and, therefore, it was quite un-necessary to mention the countries from which the tea was imported. It was on account of these facts that the Appellant Tribunal as well as the Collector Appeals had found that the tea seized had been lawfully imported and that the burden to prove its lawful import had been duly discharged by the owner on production of the relevant documents."
As is evident from the Sales Tax Registration Certificate of the appellant, the appellant's firm is also a manufacturer and can blend the tea by himself to give it a better flavor and quality and repack the same in other bags. He repacked the tea in questions in other empty bags and in this connection he produced a receipt dated 3-12-2009 issued by Haji Didar Gul Safi Bardana Merchant, which shows the purchase of the empty bags. There is no prohibition or restriction on manufacturing/ blending and repacking the tea under any law of the country. A person who engages whether exclusively or not, in the production or manufacture of goods whether or not the rawmaterial of which the goods are produced or manufactured are owned by him and shall include a person who by any process or operation assembles, mixes, cut, dilutes, bottles, packages, repackages or prepares goods by any other manner etc. will be considered to have manufactured or produced identifiable goods which can either be consumed independently or can be incorporated in the finished product of any item. Reliance placed on (2001 PTD 2097 = 2001 SCMR 1376).
22.The respondent seized the tea in question along with vehicle under section 168 of Customs Act, 1969 for violation of sections 2(s), 16, 157 and 178 read with section 3(1) of the Import and Export (Control) Act, 1950 punishable in terms of clauses (8) (9) (89) of subsection (1) of section 156 of the Customs Act, 1969. Black tea is neither notified item nor fall in the appendix-A and is not banded item and freely importable. Neither the tea is prohibited nor restricted under the Import Policy. The respondent has been failed to produce any evidence which could prove that the import of such kind of tea (tea in question) is prohibited or restricted by the Federal Government. There is no direct evidence available on record in this connection, therefore the respondent has been failed to prove the charge of smuggling. Therefore the section of law under which the appellant has been charged is not applicable. Reliance is placed on 2005 PTD (Trib.) 135. Moreover, according to the sales tax registration, the appellant is also a manufacturerandbeingthemanufacturertheappellantcanrepackthetea in empty bags. So the issue No.1, decided in favour of the appellant.
23.In relation to Issue No.2 (Whether the allegation of "In Transit to Afghanistan" is proved by the Seizing Agency?), the dispute between the parties in this case is that the respondents, seizing unit, claimed that recovered bags of black tea containing the marks "in transit to Afghanistan" which brought in the country through unauthorized routes. On the other hand the appellant denied the allegation of respondent and has stated that the recovered bags did not contain the said marks. The appellant in his written reply to Para 1 of the show cause notice (available on pages 25 and 26 of the appeal), wherein he stated that the Customs officials with the allusion of Collector Customs Peshawar have changed the actual blended black tea bags which didn't carry the said marks. The respondent No.6 i.e., the Deputy Superintendent Customs, Nowshera did not rebut this version of the appellant in his Para wise comments on the written reply to the show cause notice bearing C.No. CUS/AS/ADJ/2009/12 dated 5-1-2010 submitted on 22-1-2010. Merely the seizing officer mentioned the words "in transit to Afghanistan" in Seizure Report as well as in Recovery Memo. but he has been failed to prove that really the recovered bags carry the said marks. Further, perusal of the auction documents also did not show the mark "In Transit to Afghanistan" at the time of delivery to the bidder. The order in original as well as order in appeal did not show that the seizing officer produced such bags before the adjudication officer as well as Collector Appeals nor before this forum, which proves that it was only the pen working. The respondents have been miserably failed to prove their stance through cogent evidence. The respondents kept mum on the plea of appellant that the Customs authorities have changed the actual blended black tea bags. The fact which has not been rebutted otherwise it deems to be admitted by the party. On the other hand the appellant brought this fact in the notice of this forum that the show cause notice was issued on 5-1-2010 and he submitted his written reply to the show cause notice on 13-1-2010 the adjudicating officer without providing an opportunity of further hearing to scrutinize the plea taken in the reply to the appellant, confiscated the tea in question vide Order-in-Original No. 39 of 2010 dated 25-1-2010, while the Deputy Collector Auction Cell put the tea in question for auction on 28-1-2010. As per statement of the appellant, the appellant in person participated in the auction proceedings and has given the highest bid of 65 lacks for the goods mentioned in lot No. 01/Misc/NR/01-111/2010 DA Nos. 83 of 2009 and 84 of 2009 but the Deputy Collector Auction Cell cancelled the bid of appellant and postponed the auction of the goods mentioned in the said lot. Later on the Deputy Collector Auction Cell without observing the legal formalities and procedure as laid down under the law, auctioned the goods mentioned in the said lot to another person/bidder on payment of Rs.3255000 on 3-2-2010 (unscheduled auction) just after 05 days of the scheduled auction goods valuing C.I.F. in Seizure Case No.140 of 2009 dated 5-1-2010 of 150 bags Rs.36,67,950 and in Seizure Case No.141 of 2009 of 120 bags Rs.28,93,320 total C.I.F. value Rs.65,61,270, market value Rs.88,57,180 excluding the value of 280 bags of Dry Milk and delivered to the bidder on the same day. The appellant produced the record of auction of the goods mentioned in the said lot (placed on file) according to which the goods were admittedly auctioned in unscheduled auction on a very low price.
24.I have carefully examined the record of auction of the lot No.01/Misc/NR/01-111/2010 DA Nos. 83 of 2009 and 84 of 2009 and as per Customs Auction Schedule No. 3 of 2010 dated 28-1-2010 wherein no description of "in transit to Afghanistan" has been mentioned and subsequently verified by the Department through DR shows that the Customs Authorities have auctioned 120 bags of black tea in question having C.I.F. value Rs.28,93,320, 150 bags black tea of Seizure Case No.140 of 2009 dated 5-12-2009 C.I.F. value Rs.36,67,950, total value of tea is Rs.65,61,270 along with 280 bags of dry milk excluding its value. The delivery order dated 3-2-2010 and payment challan of Rs.32,55,000 dated 3-2-2010 (which are available on pages 60, 61 and 62 of the appeal), wherein the said mark/description required under Auction Rule 72 of the Customs Rules, 2001, is also not mentioned in the delivery order, proves the stance of appellant. According to the procedure of auction firstly; the auction schedule is published in the newspaper wherein the date, time, place, terms and conditions are mentioned. Secondly the auction will be held openly, which the circumstances show that the auction was held secretly. Thirdly the successful bidder will make the payment of 1/4th of the total bid amount and the competent authority will approve the auction within seven days of the date of auction and the bidder will be bound to deposit the remaining 3/4th amount after such approval. The record shows that the so called auction held on 3-2-2010 on the same day approved by the Collector Customs Peshawar, full amount has been deposited and the goods also delivered on the same date. Thus, the mark on bags "In Transit to Afghanistan" is doubtful and the stance of the appellant that the bags did not carry the said mark and properly purchased from the lawful importer after due payment as discussed supra. The changing of the bags and subsequently, their auction without giving notice under section 201 of Customs Act, 1969 and postponement of earlier auction of the goods mentioned in the said lot on the scheduled date while later on processed in an unscheduled auction at the back of the appellant and thereby delivered the goods to their blue eyed bidder (the goods having C.I.F. value Rs.65,61,270 excluding value of 280 bags of dry milk, against the low amount of Rs.32,55,000) meaning there by that the Tea having total CIF value 65,61,270 was disposed of through auction on a very low rate of 20 or 22 lacs approximately. Although, the Tribunal has got no concern with the procedure adopted by the respondents regarding auctioning of the said goods but as the case of respondent Collectorate is totally based on packing of the said goods mentioning (Afghanistan Transit Goods) on each and every bag could not be established an absence of the said packing/bags which otherwise should have been kept as a sample to be drawn under section 199 of the Customs Act, 1969 and to be produced before the court when and where required, so the auction of the said goods through an unscheduled and hasty manner just after fivedaysofthescheduledauctionisbasedonmalafidetoavoidthere-examination of the said goods and also to disturb the actual evidence.
25.It has also been observed that the lower fora has not properly passed the order because according to the order-in-original, reply of show cause notice has been submitted when comments from the seizing agency has been called, which were filedvideletterC.No.35dated22-1-2010 and the order-in-original was passed on 23-1-2010 without providing any copy of comments to the appellant or any further hearing which is unjustified at the part of the department. Otherwise, the Adjudicating Authority was bound to call examination of the said goods in the presence of the appellant regarding the observation of packing of the said goods, which was sufficient to establish the charge of smuggling. Similarly, the learned Collector Customs (Appeals) has also not considered the same and repeated the same illegality and for no single reason the order of the Adjudicating Authority has been upheld. So such, lastly disposal through auction and speedy adjudication seems to be based on mala fide as well as against the motive and policy of F.B.R. to facilitate the tax payers, but conduct of the customs officials in the present case shows a creation of hardship towards the registered company regularly paying tax to the exchequer. Therefore, the Order-in-Original is not confirming the facts rather all proceedings at the lower fora were carried out simply on the report of the seizing officer and the Adjudicating Authority even did not bother to examine the said goods nor applied its judicial approach to know the actual facts, therefore, the impugned Order-in-Original No.40 of 2010 dated 25-1-2010 and Order-in-Appeals Nos.465-66 of 2010 being non-speaking and non-judicial cannot be called as quasi-judicial orders within the parameters set up by the law, are liable to be set aside.
26.Inviewoftheaboveitisclearthattherespondentcouldnotproveitscaseagainsttheappellantregardingviolationofsections 2(s), 16, 157 and 178 of the Customs Act 1969 read withsection 3(1) of the Imports and Exports (Control) Act, 1950, punishable under section 156(1)(8) & (89) of the Act ibid read with section 3(3) of the Customs Act, 1950. Consequently, the appeal is accepted and is disposed of by directing the Respondents to immediately work out the entire sales proceeds that are payable to the Appellant accordingly. So fortheredemptionfineimposedonthevehicleisconcerned,thesameisbookedthroughaRegisteredGoodsTransportCompanyandthe goods were also found imported one, no connivance of transporting the smuggled goods is found, therefore, the redemption fine imposed on the vehicle is also remitted. The appeal stands disposed of accordingly.
27.This judgment shall also mutatis mutandis apply to the following appeal being identical in nature, involving common points of law and facts:--
| Appeal No. | Appellant (s) | Order-in-Original No. and date | Order-in-Appeal No. and date |
| Cus. 360/PB/10 | Messrs Khyber Tea and Foods Co. | 39/2010 dated25-1-2010 | 465-66 of 2010 dated 22-9-2010 |
KMZ/201/Tax(Trib.)Appeal Allowed.