GUL MUHAMMAD KHAN VS ADDITIONAL COLLECTOR CUSTOMS, 2018 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 2452 (2018)

Customs Act (IV of 1969)---

----Ss. 2(s), 16 & 178---SRO No.499(I)/2009, dated 3-6-2009---Smuggling of goods---Seizure and confiscation of goods along with vehicle---Truck found loaded with foreign goods was intercepted---Driver of the truck, having failed to produce legal documents, goods along with the truck were seized and Additional Collector of Customs (Adjudication) vide order-in-original, outrightly confiscated the seized goods along with the truck---Confiscated goods, consisted of two kinds; firstly, used auto parts and secondly half cut engines of foreign origin vehicles---Half cut engines of foreign origin vehicles, were not importable; whereas used auto parts, were redeemable under Cl.(e) of Part 2 of the Table mentioned in SRO No.499(I)/2009, dated 13-6-2009---Used auto parts, were ordered to be redeemed to its lawful owner on payment of redemption fine equal to 20% of assessed value, in addition to payment of duty and taxes leviable under the law---Truck carrying goods falling under Cl.(s) of S.2 of the Customs Act, 1969, was also ordered to be released on payment of redemption fine equal to 20% of assessed value of the same---Half cut engine of foreign origin vehicle, which was not importable, was rightly confiscated.

2016 PTD (Trib.) 22 and 2005 SCMR 492 ref.

Ajoon Khan for Appellant.

Mir Sahib Khattak, I.O./D.R. for Respondents.

Date of hearing: 7th February, 2018.

JUDGMENT

SYED SARDAR HUSSAIN SHAH, MEMBER (JUDICIAL).---This appeal has been filed by Gul Muhammad Khan son of Samar and another (herein after called appellants) against the Order-in-Original No.22 of 2017, dated 04.05.2017, passed by the Additional Collector of Customs (Adjudication), Islamabad, Camp Office, Jamrud Road, Custom House, Peshawar.

2.Briefly stated the facts of the case are that on 06.11.2016 at about 2100 hours, in pursuance of information received to Director, staff of Field Intelligence Unit, Mardan intercepted a Hino Truck bearing Registration No.LXP-7586 near Rashakai Interchange, District Nowshera. On cursory search, the Truck was found loaded with foreign origin old and used auto parts of light vehicles, therefore, the goods along with vehicle was brought to the office of Customs Intelligence, Peshawar, where on thorough search, led to the recovery of foreign origin goods (detail as per Recovery Memo. No.35/2016, dated 08.11.2016). On demand, the occupant/driver of the vehicle namely Gut Muhammad Khan could not produce legal documents regarding its imports. The counting process of the recovered goods was completed on 08.11.2016, and were seized under the provisions of Section 168 of the Customs Act, 1969 (hereinafter called as the "Act"), for violation of sections 2(s), 16 and 178 of the Act ibid read with section 3(1) of the Imports and Exports (Control) Act, 1950 punishable under Sections 156(1)(8) and (89) of the Act, read Section 3(3) of the Imports and Exports (Control) Act, 1950. The aforesaid vehicle used as conveyance for the transportation/removal of smuggled goods was also seized under Section 157 of the Act, and the case papers were submitted for adjudication under the relevant provisions of the Act.

3.After completion of the requisite formalities, the matter was placed before the learned Additional Collector of Customs (Adjudication), Islamabad, Camp Office, Custom House, Peshawar, who vide his Order-in-Original No.22 of 2017, dated 04.05.2017, outright confiscated the seized goods along with the subject vehicle in terms of Section 156(1) Clauses (8) and (89) and Section 157 of the Act, read with Section 3(3) of the Imports and Exports (Control) Act, 1950.

4.Counsel for the appellant argued that the goods and Hino Truck bearing Registration No.LXP-7586 have been taken into possession on 06.11.2016 by the staff of Customs Intelligence vide Recovery Memo. of the said date and the matter was reported vide Seizure Report dated 23.11.2016 with the lapse of 20 (twenty) days, which is not warranted under the law. The Show-Cause notice was issued on 19.11.2016 and the Order-in-Original was passed on 04.05.2017, which is totally time barred. S.R.O. No.499(I)/2009, dated 03.06.2009 has not been referred in the show-cause notice neither in the Order-in-Original dated 04.05.2017. In support of his arguments, he produced 2016 PTD (Trib.) 22 and 2005 SCMR 492.

5.On the other hand the Departmental Representative strongly opposed the contention of the appellant's counsel and supported the impugned Order-in-Original dated 04.05.2017 of the learned Additional Collector of Customs (Adjudications) and argued that the ONO has not been time barred and is well within time and 20 (twenty) days period was consumed by counting of the items from the date of recovery up to Seizure.

6.I have heard Mr. Ajoon Khan learned Advocate for the appellant as well as Mr. Mir Sahib Khattak, I.O./D.R for the respondent and gone through the record with their able assistance.

7.The confiscated goods consist of used auto parts as well as half cut engine of foreign origin vehicles. The Recovery Memo. of first part showing the details of half cut engines from serial No.01 to serial No.03 while the used auto parts of light vehicles shown in the second part of Recovery Memo. from serial No.01 to serial No.14, and the Hino Truck bearing Registration No. LXP-7586 has been shown at serial No.15 of the Recovery Memo. which bring the case within the ambit of Clause (s) of Section 2 of the Act read with (8), (89) of Section 156 (1) of the Act. The half cut engine of vehicles, bearing Chassis numbers are not importable, however used auto parts are redeemable under Clause (e) of part 2 of the table mentioned in the S.R.O. No.499(I)/2009, dated 13.06.2009.

8.In view of the above, this appeal is partially accepted and the confiscated goods mentioned in the second part of the Recovery Memo. as used auto parts of light vehicles from serial No.01 to serial No.14 are redeemed to its lawful owner on payment of redemption fine equal to 20% of the assessed value, in addition to payment of duty and taxes leviable under the law and while the Hino Truck bearing Registration No. LXP-7586 was carrying goods falling under Clause (s) of section 2 of the Act is also released on payment of redemption fine equal to 20% of the assessed value of the same. The appeal stands disposed of accordingly.

HBT/9/Tax(Trib.) Appeal partially accepted.