NAUMAN KHAN VS DIRECTORATE OF INTELLIGENCE AND INVESTIGATION-FBR, LAHORE, 2018 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 495 (2016)

(a) Customs Act (IV of 1969)---

----S. 194-A---Appeal to Appellate Tribunal---Persons entitled to file appeal---"Person aggrieved"---Connotation---Customs Tribunal was a creature of statute having been formed under the Customs Act, 1969---Right of appeal, had to be exercised only by a person permitted by the statute subject to the condition laid therein---Expression "person aggrieved" employed in S.194-A of the Customs Act, 1969, had a wider connotation than the expression "party aggrieved"---Expression "person aggrieved" had to be construed only in the context of the statutory scheme of the Customs Act, 1969 particular in the context of S.194-A.

(b) Words and phrases---

----"Person aggrieved", Connotation explained.

Wesbster's Comprehensive Dictionary International Edn. at page 28; Stroud's Judicial Dictionary, 5th Edn., Vol.1, Pages 83-84 and Black Law's Dictionary 6th Edn. Page 65 ref.

(c) Customs Act (IV of 1969)---

----Ss. 2(s), 16, 157, 168 & 194-A---"Smuggling"---Seizure and confiscation of vehicle, allegedly used in smuggling---Judicial redress, availability of---Judicial redress was available only to a person who had suffered a legal injury by reason of violation of his legal right to property, body or reputation---Appellant, in the present case, was the driver of impugned bus---Nothing was on record to show that the appellant had any proprietary rights over the said bus---Appellate Tribunal was barred under the law to extend such rights, unless he established his ownership in a manner known to law---Appellant having failed to prove his ownership of confiscated bus, was not an "aggrieved person" as envisaged under S.194-A of Customs Act, 1969 and in circumstances had no locus standi to file appeal against confiscation.

Ahsan Baqer Ali for appellant.

Ch. Imtiaz Elahi for Respondents.

Date of hearing: 18th April, 2016.

JUDGMENT

OMAR ARSHAD HAKEEM, MEMBER (JUDICIAL).---This judgment shall dispose of an appeal filed against Order-in-Appeal No.184/2015 dated 08.09.2015 passed by the learned Collector of Customs, (Appeals) Lahore.

2.Precise facts of the core controversy involved in the instant appeal are that the staff of Customs Intelligence and Investigation-FBR, Range Office, Lahore intercepted a bus bearing registration No. LES-07-9999. The person sitting on the driving seat. introduced himself as Nauman Khan son of Muhammad Javed. On cursory inspection, foreign origin goods were found available in rear portion of the bus and in its dikkies. About 15 passengers were available in the bus who did not claim the ownership of the said goods, therefore they were allowed to go. On demand the driver or the conductor failed to provide any evidence, documentary or otherwise is respect of lawful possession of legal import of the recovered goods. There were sufficient reasons to believe that recovered goods had been smuggled into the country without payment of leviable duty and taxes. The impugned goods were therefore seized under section 168(1) of the Customs Act, 1969 for contravention of the provisions of sections 2(s) and 16 ibid read with section 3(1)(3) of the Imports and Exports (Control) Act, 1950.

3.Mr. Fayyaz Ahmad son of Faiz Baksh appeared in the office of the investigating agency and claimed the ownership of the seized foreign origin old and used Fuel Tank Pumps (2 bags each containing 50 pcs). ii) Muhammad Khalid son of Makhan and claimed ownership of seized liquid center gum spout, brand LOTTE Spout, made in Korea packing 08 packs x 3 (20 cartons) iii) Muhammad Idrees son of Muhammad Younas claimed ownership of seized bath soap bar, brand Dove Made in Germany 2400 bars (50 cartons) and submitted application for summary adjudication of the case without issuance of show-cause notice and showed their willingness to pay duty and taxes leviable thereon.

4.The adjudicating proceedings culminated into passing of an order in original, which reads as under:--

"In view of the confession made by the respondents, the charge to the extent that the goods have been brought into the country without payment of duties and taxes stands established. Therefore the seized-goads mentioned in para-1 of this order are confiscated under clause (90) of section 156(1) of the Customs Act, 1969. However, an option under section 181 of the Customs Act, 1969 is allowed and confiscated goods are redeemed to its lawful owners on payment of redemption fine equal to 20% (twenty percent) of the assessed value of the same in addition to payment of duty/taxes leviable thereon. The seized bus bearing registration No. LES-07-9999 used for transportation of impugned goods is confiscated under section 157 of the Customs Act, 1969. However, an option under section 181 of the Customs Act, 1969 provisionally released earlier against bank guarantee Rs.1,00,000/- (pak rupees one lac only) issued vide order C.No. V-Cus/DC/ADJ/53/2015/113 dated 01.04.2015 is allowed and confiscated bus bearing registration No. LES-07-9999 is redeemed to its lawful owner on payment of redemption fine of Rs.1,00,000/- (pak rupees one lac only)."

5.Being aggrieved from the aforesaid order of the Deputy Collector of Customs (Adjudication), Lahore the appellant filed an appeal (to the extent of bus) before the learned Collector of Customs (Appeals), Lahore who vide impugned order in appeal rejected the same and passed the following order:--

"I have examined the case record, considered the grounds of appeal, verbal arguments advanced by the learned counsel of the appellant as well as departmental representative during hearing proceedings and have found that the seized bus has already been released against redemption fine of rupees one lac. The appeal has paid the redemption fine willingly. Thus I found no reason to interfere with the Order-in-Original No. 131/2015 dated 17.06.2015 which has been legally passed. In view of the above the instant appeal being devoid of any legal merit is rejected."

6.Being further aggrieved from the aforesaid order of the learned Collector of Customs (Appeals), Lahore the appellant has filed the instant appeal (to the extent of bus) before the Tribunal on the following grounds:--

(a)That the impugned order-in-appeal has been passed in a mechanical fashion and without proper appreciation of law points involved in the case. As such the same is liable to be set aside on this score alone.

(b)That the allegations against the appellant are not based on any evidence and reasoning. The allegations are based on presumptions only.

(c)That the loaded goods have been claimed by every individual owner. Therefore confiscation of the vehicle and redemption thereof is against the provisions of law and thus the impugned order-in-original is liable to be set aside.

(d)That for the purpose of proper assistance it is submitted that the goods were loaded in the bus and there is no secret cavity built in the vehicle which could suggest that vehicle was being used to transport the goods in an illegal manner. Hence the impugned order so far it relates to imposition of redemption fine is liable to be set aside.

(e)That there is no evidence which could prove the involvement of the appellant in the alleged offence. The confiscation of the vehicle is against the provisions of section 157 of the Customs Act, 1969. The goods were loaded by the passengers travelling in the bus. The appellant has no authority to enquire about the status of the goods.

7.Heard. Record examined.

8.We have carefully considered the arguments advanced by rival parties, perused the record and discerned the relevant law.

9.We are confining ourselves to the question of locus standi of present appellant to file instant appeal, this being the very important and basic threshold question raised by the learned counsel for the respondent department, which in our opinion would suffice for a proclamation;

10.I need not be emphasized that the Customs Appellate Tribunal is a creature of statute being formed under the Customs Act, 1969 and therefore the right to appeal under section 194-A thereof has to be exercised only by persons permitted by the statute to prefer an appeal subject to the conditions regarding the filing of such an appeal. It is noted that the expression "person aggrieved" employed in section 194-A of the Act, has got a wider connotation than the expression "party aggrieved", therefore, the expression "person aggrieved" has to be construed only in the context of the statutory scheme, viz., the scheme of the Customs Act, 1969, particularly in the context of section 194-A of the Act.

11.For the purpose of understanding the meaning of the expression "person aggrieved", we are obliged to refer the dictionary meaning of the same in this connection.

12.In Collin's English Dictionary, the word 'aggrieved' has been defined to mean "to ensure unjustly especially by infringing a person's legal rights". In Webster's Comprehensive Dictionary, International Edition at page 28, aggrieved person is defined to mean "subjected to ill-treatment, feeling an injury or injustice. Injured, as by legal decision adversely infringing upon one's rights". In Stroud's Judicial Dictionary, 5th Edn., Vol. 1 , pages 83-84, person aggrieved means "person injured or damaged in a legal sense". In Black Law's Dictionary, 6th Edn. at page 65, aggrieved has been defined to mean "having suffered loss or injury; damnified; injured" and aggrieved person has been defined to mean: "one whose legal right is invaded by an act complained of, or whose pecuniary interest is directly and adversely affected by a decree or judgment. One whose right of property may be established or divested.

13.According to the law laid down law by the superior courts with context to locus standi, judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right to property, body or reputation.

14.It is an admitted fact that the present appellant is the driver of the impugned Bus No.LES-07-9999; There is nothing on record to show that the appellant has any proprietary rights over the impugned Bus, consequently this Tribunal is barred under law to extend such rights unless the appellant establishes his ownership in a manner known to law.

15.We therefore do not hesitate to proclaim that the appellant has failed to prove his ownership of confiscated BUS carrying Reg. No.LES-07-9999 as required by law. It is therefore emphatically held that the appellant is not an aggrieved person as envisaged under section 194-A of the Customs Act, 1969 and therefore has no locus standi to file instant appeal.

16.In wake of above discussion, this Customs Appeal is dismissed with no orders as to costs.

17.Parties be informed through registered post A.D. or by UMS.

18.File be consigned to record after completion.

HBT/142/Tax(Trib.) Appeal dismissed.