Collector of Customs . Vs Aman Ullah Khan

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

LAHORE

JUDICIAL DEPARTMENT

Custom Reference No.47412 of 2021

Collector of Customs. versus Aman Ullah Khan. Sr. No. of order/ Date of order/ Order with signature of Judge, and that of Proceedings Proceeding Parties’ counsel, where necessary 27.09.2021 Ms. Saba Saeed Sheikh, Advocate for the applicant. Mr. Raza Ahmed Cheema, Advocate for respondent.

Muzamil Akhtar Shabir J.: Through this Customs Reference under Section 196 of the Customs Act, 1969, the applicant has called in question judgment dated 03.05.2021 passed by Customs Appellate Tribunal, Bench-II, Lahore (‘Appellate Tribunal’), in Custom Appeal No. 155/LB/2020 and inter alia has raised the following legal question for our opinion: "a. Whether the learned Customs Appellate Tribunal has got jurisdiction to pass an order against the record available with it?

b. Whether the learned Customs Appellate Tribunal has erred in law by verifying the bogus record produced by the owner?"

2.Brief facts of the case are that the staff of the detecting agency recovered foreign origin allegedly smuggled/non-duty paid bitumen from a warehouse /godown located at near Khear Chowk, Kot Rab Nawaz, Southern Bypass, Multan. The said goods were detained under Section 2 (k) read with Section 17 of the Customs Act, 1969 and were seized on 26.11.2020 under Section 168 of the Act. The adjudication process culminated into passing of Order-in-Original No. 162/2021 dated 19.03.2020, whereby the said foreign origin goods were confiscated. The appeal filed by the respondent there-

against was allowed by the Appellate Tribunal on 03.05.2021 and the goods were ordered to be released unconditionally to their owner(s).

3.Learned counsel for the applicant-department states that the Appellate Tribunal had not appreciated that the respondent had produced fake receipts and sales tax invoices in support of claim and the same could not be relied upon by the said Tribunal to allow the appeal filed by the respondent.

4.On the other hand, learned counsel for the respondent has defended the impugned judgment.

5.Presently, the applicant-department seeks setting- aside of judgment dated 03.05.2021 for unconditional release of bitumen by claiming that the respondent had produced its bogus receipts, whereas learned counsel for the respondent denies the same and states that receipts were genuine and rightly relied upon by the Appellate Tribunal, and at this stage the said findings of fact could not be interfered with by this Court. Before the Custom authorities and the Appellate Tribunal, the respondent claimed that supplies of bitumen subject matter of this Reference had been made to him by the importer of said goods/items in furtherance of business through sales tax invoices, which were duly reflected in the sales tax returns of the respondent and also available with the FBR’s system relating to filing of Sales Tax Return. The Collector Customs had observed that all the documents are managed and have been prepared as an after-thought and the seized bitumen is not covered under the produced documents and on the said basis passed order for outright confiscation of said goods/items and imposed personal

penalty of Rs. 500,000/- on owner/tenant of the godown, however, perusal of the said order shows that nothing was observed or shown from the record as to how the said conclusion was reached by the Collector and which test has been applied rather it appears that minor discrepancies in documents were made basis of reaching the said conclusion. Thereafter on appeal, the Appellate Tribunal by taking into consideration the documents produced by the respondent reached the conclusion that it was a case of local supplies and the respondent by producing proper documents had reasonably discharged onus of proof in terms of Section 187 of the Act to show that the recovered bitumen was in his lawful possession and set-aside the order of confiscation. The relevant portion of the impugned order is reproduced below:

“We have considered the contentions of the parties available on record. The areas relating to the impugned goods being duty paid and the circumstances are discussed as follows. The department has initially failed to substantiate the contention that the goods were non-duty paid. The supplies had been made by the importer in furtherance of business through proper sales tax invoices. It is a case of local supplies. There is a documentary evidence manifesting proper trail available regarding the said supplies and their link to imports. The evidence consists of the Sales Tax invoices 20.02.2021, 19.03.2021 and 20.04.2021 of M/s. Amanullah duly reflected in the Sales Tax Returns available in the FBR’s system related to Sales Tax filing. The appellant has, thus, reasonably discharged onus of proof in terms of section 187 of the Act. In the circumstances the opinion of confiscation of the goods and imposition of penalty under the impugned order is unlawful and unfair.

In view of the foregoing position, we set aside the impugned order-in-original No. 162/2021 dated 19.03.2021 and accept the instant appeal. The

goods are allowed unconditional release to their owner(s).”

Now the said finding of release of bitumen on the basis of genuineness of documents is under challenge before this Court. On the one side, the respondent is relying upon receipts and sales tax invoices stated to be documents of ownership and lawful possession of bitumen mentioned above and on the other respondent is denying the genuineness and relevance of said documents.

Similar situation relating to genuineness of documents produced by the holder of goods came up for determination before the Sindh High Court relating to a vehicle in case titled as Muhammad Gul versus Member Judicial, Customs Appellate Tribunal, Karachi and another (2013 PTD 765), wherein a vehicle registered with the Motor Vehicle Registration Authority was seized by the Customs authorities by treating the same as smuggled vehicle but the owner produced registration book with other documents that were verified by the Motor Vehicle Registration Authority and the Customs authorities failed to ascertain whether import documents produced by the importer were fake or irrelevant or whether registration of such vehicle was in accordance with law or not and resultantly, it was held that authority had failed to discharge burden of proof, which shifted on them in terms of Section 187 of the Customs Act, 1969, on production of such documents by the owner and by accepting the Reference, the order of confiscation was set-aside.

In the present case also documents produced by the respondent about local purchase and corresponding Sale

Tax Returns which are official documents that have also been relied upon by the Appellate Tribunal shifted the burden upon customs authorities to show that the same were not genuine. The said documents have not been got verified from relevant quarters by the Customs authorities to reach conclusion whether the same are genuine or not and whether the same related to the afore- referred bitumen or not, thus the burden that shifted upon the Customs authorities on production of said documents by respondent in terms of Section 187 of the Customs Act, to substantiate the said bitumen was non-duty paid has not been properly discharged, hence, the said findings of fact about genuineness of documents and lawful possession of bitumen are not shown to be against the record.

6.Moreover, this Court cannot interfere in the findings of fact about genuineness of receipts relied upon by the Appellate Tribunal as no question of law arises in the given circumstances of the case that requires determination by this Court for the reason that in judgment passed by this Court reported as PTCL 2007 CL. 448 (M/s. Ittehad Textile Industries (Pvt.) Ltd versus. Collector of Sales Tax and Central Excise, Faisalabad and 2 others), it is held as under:- “Whether in the facts of the case, a disputed invoice is genuine or fake is a question of fact. Before us the learned counsel has not disputed the validity or propriety of any test applied by the applicant- department to establish the genuineness of the invoices tendered by the respondent. Resultantly, in the present case where the applicant department disputes the genuineness of the tendered invoices the question raised is one of the fact and no legal issue arises for our determination.”

7.Perusal of the afore-referred judgment passed by this Court shows that the question of genuineness of receipts or documents produced before the Appellate Tribunal can be determined by the said Tribunal, and unless it is apparent from the record that documents/receipts were not genuine, this Court would not enter into inquiry to determine the genuineness of the said documents as the same amounts to recording of findings of fact, which is normally beyond advisory jurisdiction of this Court, especially in the circumstances when the Appellate Tribunal is the last forum for recording findings of fact in such like matters and its determination of factual aspect of the matter is final. The applicant has not been able to show that the Appellate Tribunal had passed an order against the record available with it, therefore, the proposed question at Sr. No.(a.) above does not arise from the impugned judgment and is not required to be answered in the given circumstances of the case.

8.It is pertinent to note here that this Court in its jurisdiction under Reference is only to confine itself to the questions of law and does not decide the controversy of fact to interfere in the orders passed by the Appellate Tribunal. Reliance in this regard is placed on 2019

SCMR 906 (PAKISTAN MATCH INDUSTRIES (PVT.)

LTD Versus ASSISTANT COLLECTOR, SALES TAX

AND CENTRAL EXCISE MARDAN), 2017 SCMR 9

(ARMY WELFARE TRUST (NIZAMPUR CEMENT

PROJECT), RAWALPINDI and another versus COLLECTOR

OF SALES TAX (NOW/ COMMISSIONER INLAND

REVENUE), PESHAWAR) and 2014 SCMR 907 (Messrs F.M.Y. INDUSTRIES LTD versus DEPUTY COMMISSIONER INCOME TAX and another). In the

present case, in view of the findings of fact recorded by the Appellate Tribunal after due appreciation of record that attempt to smuggle was not made out and the fact that the applicant-department has not established that respondent had produced bogus record, the proposed question at Sr.No (b.) is answered in the negative.

9.For what has been discussed above, this Reference being devoid of any merit is decided against the applicant-department and is dismissed.

10.Office shall send a copy of this order under seal of the Court to learned Tribunal as per Section 196(5) of the Customs Act, 1969.

(JAWAD HASSAN) (MUZAMIL AKHTAR SHABIR)

JUDGE JUDGE

*Zeeshan Khan*

Approved for reporting

Judge Judge