Sana ullah Khan etc VS Assistant Collector etc

2022 P T D 626

[Lahore High Court]

Before Jawad Hassan and Muzamil Akhtar Shabir, JJ

SANA ULLAH KHAN and another

Versus

ASSISTANT COLLECTOR ANTI SMUGGLING ORGANIZATION and others

Custom Appeal No.56 of 2004, decided on 28th October, 2021.

Customs Act (IV of 1969)---

----Ss.156(1)(90) & 181---Option to pay fine in lieu of confiscation of goods---Discretionary jurisdiction---Scope---First appellant was the driver while the second appellant was the owner of trailer on which goods were loaded from port of entry at Karachi to the port of destination i.e. Lahore---Driver instead of terminating his journey at the destined place, took the conveyance to an unknown place where it was confiscated by the Customs authorities --- Show cause notice was issued to the appellants which was replied by them and ultimately offences in terms of Cls. (8), (89) & (90) of S. 156(1) of Customs Act, 1969, were held to be fully established---Vehicle was confiscated, however, it was ordered to be released on payment of fine at the rate of Rs.1,00,000/- each in lieu of confiscation---Main argument of the appellants was that the penalty imposed on the driver was harsh---Validity---Section 156(1)(90) of Customs Act, 1969, showed that besides confiscation, any other person concerned was liable to a penalty---Quantum of fine in lieu of confiscation was left on the discretion of the officer of Customs---Driver was incharge of the vehicle and was liable to fulfil his liability to deliver the goods at the destined place---Appeal was dismissed.

Imran Aziz for Appellants.

Sheikh Izhar-ul-Haq for Respondents.

ORDER

This appeal under Section 196 of the Customs Act, 1969 (the "Act") has been filed by the Appellants, being dissatisfied by the judgment passed by the Customs, Excise and Sales Tax Appellate Tribunal, Bench-I, Lahore (the "Appellate Tribunal") dated 17.06.2004. The following question of law is said to have arisen out from the impugned judgment.

QUESTIONS OF LAW

I). "Whether the imposition of heavy penalty of one lac each against vehicle and appellants without proving his negligence would not be just and harsh?

2.Learned counsel for the Appellants submitted that the impugned judgment is illegal and contrary to the law and facts of the case; that impugned judgment has been passed in a slipshod manner without taking into consideration the requirements of Section 156 of the Act; that evidence produced by the Appellants has not been properly examined by the Appellate Tribunal; that the Appellate Tribunal has not passed the above referred judgment in accordance with law and has fallen into error by imposing harsh and heavy fine.

3.Learned counsel for the Respondent department opposed the arguments and supported the reasons given in the impugned judgment.

4.Heard. Record perused.

5.The Appellants have disputed the judgment dated 17.06.2004 of the Appellate Tribunal which dismissed their appeals and confirmed the order imposing penalty on them. We have examined the impugned judgment passed by the Appellate Tribunal, in light of relevant provision, operative part of which is reproduced for reference:- "The appellant, Sanaullah Khan, knew it well as to which place he was to terminate his journey at NLC, Dryport, CFS, Lahore and where the sealed container loaded on his trailer was to be un-loaded and de-stuffed. Instead of taking the same to its given destination, he took it to an unauthorized place, from where it was detected by the staff of Anti-Smuggling Organization, Lahore. Whatever be the circumstances, without his active involvement this offence could not have got committed. He was Incharge/controller of the vehicle at that point of time and therefore, the imposition of penalty on Sanaullah and imposition of fine in lieu of confiscation of the trailer is not considered harsh".

6.Admittedly, the Appellant No.1 was the driver of trailer bearing Registration No.LS - 4172 along with the Appellant No.2 as its owner on which goods were loaded from port of entry at Karachi to the port of destination i.e. NLC Dryport Container Freight Station, Lahore. It evinces from the record that the Appellant No.1 instead of terminating his journey at the, destinated place, took the conveyance to an unknown place where it was confiscated by the customs authority. A show-cause notice was issued to the Appellants which was replied by them and ultimately offences in terms of Clauses 8, 89 and 90 of Section 156 of the Act were fully established against the appellants and vehicle was confiscated however, it was ordered to be released on payment of fine of Rs.1,00,000/- in lieu of confiscation. The main argument of the learned counsel for the Appellants is that the penalty imposed on the Applicant No.1 is harsh. Section 156(1)(90) of the Act, defining the contravention in question is reproduced hereunder:- Punishment for offences.---(1) Whoever commits any offence described in column 1 of the Table below shall, in addition to and not in derogation of any punishment to which he may be liable under any other law, be liable to the punishment mentioned against that offence in column 2 thereof:-

If any person, without lawful excuse the such goods shall be liable to proof of which shall be on such person, confiscation, and any person concerned acquires possession of, or is in any way shall also be liable to a penalty not concerned in carrying, removing, exceeding ten times the value of the depositing, harbouring, keeping or goods concealing or in any manner dealing with any goods, not being goods referred to in clause 89, which have been unlawfully removed from a warehouse, or which are chargeable with a duty which has not been paid, or with respect to the importation or exportation of which there is a reasonable suspicion that any prohibition or restriction for the time being in force under or by virtue of this Act has been contravened, or if any person is in relation to any such goods in any way, without lawful excuse, the proof of which shall be on such person, concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon, or of any such prohibition or restriction as aforesaid or of any provision of this Act applicable to those goods,

The underlined portion of the reproduced provision shows that besides confiscation under this provision any other person concerned is also be liable to a penalty. In the case in hand, the legal position that the contravention called for confiscation is not denied, however, the fine imposed, in lieu of confiscation under Section 181 of the Act of 1969, is questioned. Bare reading of principal clause of Section 181 of the Act reveals that the Officer passing the order of confiscation can give the owner of the goods an option to pay fine in lieu of confiscation and the quantum of fine is left on his discretion. The Appellant No.1 being the concerned person was the Incharge of the vehicle and was liable to fulfill his liability to deliver the goods at the destined place which he failed to do so as a result whereof a fine was imposed upon him in terms of Section 156(1)(90) of the Act.

7.In view of above, the appeal in hand has no merits, which is dismissed.

8.Office shall send a copy of this order under seal of the Court to the Appellate Tribunal as per Section 196(5) of the Act.

SA/S-15/L Appeal dismissed.