KARACHI: A two-member bench of Customs Appellate Tribunal Quetta comprising Chairman Hafiz Ansar-ul-Haq and Ihsan Ali Shah (Member Technical) dismissed 35 identical appeals filed by different claimants and represented by Advocate Naimatullah Achakzai, Advocate Nasrullah Kakar, & Advocate Naseebullah Khan Achakzai while Khalid Mehmood Rajper represented respondent MCC Enforcement, Quetta.
A case involving the seizure of smuggled goods worth Rs. 765 million, including Duty & Taxes amounting to Rs. 469 million, was not decided as a separate case. Instead, it was decided along with a case of lower-value seizure, vide seizure case No. 319-Cus/Seiz/LPS/2023, through Order-in-Original No. 3084/2023 dated 24.01.2024, by applying “Mutatis Mutandis”.
A criminal case i.e FIR No. 01-Cus/Seiz/DMJ-NAUTTAL/2023 dated 16.11.2023 was registered, and cognizance was taken by the Special Judge (Customs) Dera Murad Jamali under section 185-A OF Custom Act, 1969, wherein four (4) persons were arrested, and three (3) were mentioned as absconders in the challan report submitted to the special court. The Collector Adjudication Quetta, while accepting an application on plain paper regarding the ownership of the goods filed through a counsel bearing doubtful signatures of the claimants, entertained the same without verification in accordance with the law.
It is pertinent to mention here that due to personal appearance of the Chief Collector Enforcement Mr Muhammad Yaqoob Mako and assisted by Collector Tahir Qureshi, during which the Honorable Court was properly assisted and all-important aspects of the case were presented before the bench, and a report was submitted, the Honorable Court was pleased to allow the reference filed by this Collectorate. The Court remanded Custom Reference Application No. 52/2024 along with CRA Nos. 53/2024 to 86/2024 to the Appellate Tribunal with certain directions and also sent a copy to the Chairman for intimation and record through a short order dated 26.06.2024. After remanding the matter back to the Tribunal for a fresh decision, and directing the Chairman to constitute a bench in accordance with the law and decide the matter within two months.
On receipt of the orders of the Hon’ble High Court and in compliance thereof, a Division Bench was constituted and the hearing was immediately fixed on 8th August 2024. Advocate Nasrullah Khan Kakar was present who had earlier represented all the Appellants when disposed of, by the Single Bench of learned Member (J) Quetta, however the learned Advocate stated that Power of Attorney was awaited from the Appellants.
On the other side Advocate Khalid Mehmood Rajpar appeared for the respondents and filed his nomination from the respondents MCC Enforcement Quetta to defend all Appeals. He also filed consolidated cross objections which were kept on record. The hearing was next fixed for 21st August 2024.
Customs Appeal Nos: from Q-476 to 510/2024
11.11.2023 at about 17:55 hours the staff of Field Enforcement Unit DMJ signaled to stop 07 vehicles loaded with containers, but the drivers sped away. Accordingly, Mr. Arif Jumani Incharge Preventive officer DMJ Nauttal informed the Hqrs: Office, Assistant Collector, Joint Control Center/JCPs and Superintendent Hqrs immediately contacted FC and Police authorities for assistance as provided under section 7 of Customs Act 1969. Customs staff of FE, Nauttal with the help of FC and local Police succeeded in intercepting the vehicles bearing Reg No. TLJ-877, TAA-051, JV-0315, TLK-944, K-2052, EA-7334, TLA-178 mounted with containers at Dera Murad Jamali. Thorough checking of all 07 vehicles / containers by the Customs staff led to recovery of below mentioned foreign origin smuggled goods. Since no proof of lawful import/payment of leviable duty and taxes as required under section 156(2) and section 187 of Customs Act, 1969 were presented, hence the said smuggled foreign origin goods were seized under section 168 of Customs Act 1969 and the drivers of the said vehicles were STED arrested. An FIR No. 01-Cus/Seiz/DMJ-Nauttal/2023 dated ETR16.11.2023 was lodged against the accused persons accordingly.
The offence falls within the scope of section 2(s) and 16 of Customs Act 1969, read with SRO 566(1) 2005, dated 06.06.2005, further read with section 3(1) of Imports & Exports Control Act, 1950 punishable under clause 89 of section 156(1) of Custom Act 1969 read with SRO 499(1)/2009 dated 13.06.2009. The vehicles and containers having been used for the Carriage/removal of the smuggled foreign origin goods, therefore the said vehicles/containers were also seized under section 157(2) of the Customs Act 1969, under Musheernama prepared on the spot. Notices under section 171 of Customs Act 1969 were served upon the arrested drivers as well as pasted on the notice board of the FEU Dera Murad Jamli (Nauttal) under section 215 of the Customs Act 1969. Recovery memo was prepared in the presence of witnesses.
Learned Appellate Tribunal held and observed that in paragraph 21 that A look into the table provided above under para 19 reveals that all 28 Invoices submitted by 28 Appellants / claimants are concentrated between the dates 16.10.2023 to 25.10.2023. While all the suppliers have been found to be invalid, reference to the summary under para 20 above, the concentration of dates of the issuance of these invoices also undermines the case of Appellants. It lends voluminous credence to the averments by the counsel for the MCC that the said documents have been got issued from non-filers& suspended / Black listed suppliers as a joint attempt by all Appellants to discharge the burden of proof that the goods are not smuggled. The suppliers have on their own turn grossly violated the substantive law envisaged under Sales Tax Act 1990. Instead of contributing to establishing the lawful purchase attempt of the Appellants it conversely establishes the unlawful by all Appellants in resorting to illegal means for discharging the burden of proof by way of misleading evidence which cannot to be viewed softly. In the light of foregoing, we don’t see anything available with the Appellants to discharge the burden of proof. We therefore conclude that the charges framed by the Seizing Agency are firmly established. Accordingly, all the Appeals are dismissed.
Text of order is available in PDF file from for over readers:
Customs Appellate Tribunal Quetta 35 dismisses appeals