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Appeals Nos. Cus. 17/PB, 19/PB of 2009, decided on 23rd April, 2009.

----S.181---Option to pay fine in lieu of confiscated goods---Outright confiscation of Dry Fruit being foreign origin with an order for the release of carriage---Appeal---First Appellate Authority while setting aside the order-in-original, released the seized/confiscated goods along with the vehicle unconditionally being fruit in question was to be a local produce of Balochistan---Filing of appeal by the Collector Customs against unconditional release of offending goods (Dry Fruit) and vehicle---Validity---First Appellate Authority directed the Customs Authorities for securing fresh samples for its examination through expert so as to ascertain whether it was a local produce or of foreign origin which order of the First Appellate Authority was never complied with by the Customs Authorities with a written response thereto that "once the Expert Report having come to hand would not call for another opinion" which conduct on the part of the Customs Authorities would amount to exercise of an influence upon the appellate forum to follow the foot prints as laid down through order-in-original from which an inference could easily be drawn to the effect that the detention of truck and seizure of Dry Fruit was based on mala fide and ulterior motives certain performance of customs seizing staff, highly lamentable being far beyond the scope of law on the subject---One gets surprised that as to what made Collector Customs to have filed the appeal to question the verdict of First Appellate Authority when the record on face of it would negate their stance---Collector Customs had failed to prove his contention and the appeal even was not worth to proceed with and the order-in-appeal being based on proper appreciation of facts on record and law on the subject called for no interference by the Appellate Tribunal---Appeal being devoid of any substance was dismissed by the Appellate Tribunal. Barrister Syed Muddassar Amir along with Naseer Khan, Deputy Superintendent and Muhammad Aqleem Khan, Inspector for Appellant. Isaac Ali Qazi for Respondents. Date of hearing: 23^rd April, 2009.

The Collector of Customs, Custom House, Peshawar (the appellant) has filed this appeal against the Order-in-Appeal No.15-17 of 2009 dated 5-1-2009 passed by the learned Collector, Customs, Federal Excise and Sales Tax (Appeals), Rawalpindi, Camp at Custom House, Peshawar whereby he while allowing Appeal No. Cus.541 of 2008 filed by the respondents, set aside the impugned Order-in-Original No.279-281 of 2008 dated 16-12-2008 passed by Mr. Muhammad Asghar Khan, Additional Collector-II, Customs, Peshawar whereby he ordered outright confiscation of the offending goods (i.e. Dry Fruit) whereas, ordered the release of the truck, involved in transport of the offending goods in terms of section 181 of the Customs Act, 1969. 2. Facts briefly stated are that the Customs Staff headed by Mr. Muhammad Aqleem Khan, Inspector and Mr. Subuctageen, Inspector along with other class-IV contingents apprehended Truck No.TKA-621 at D.I.Khan-Bannu Road at Lochi Toll Plaza and found 179 gunny bags of Almonds, 7 gunny bags of Injeer (dried) and 74 gunny bags of (dried) Apricots which was being transported to Peshawar: Driver of the truck was asked to produce the import documents with regard to Dry Fruit so recovered suspected to be of foreign origin which he could not produce rather submitted that the said Dry Fruit being local product of Baluchistan was lo4ded in Quetta and booked for Peshawar vide Bilty Challan No.9613 dated 21-11-2008, with which the Customs staff did not agree and chalked a contravention Case No.79 of 2008 on 26-11-2008, based on seizure Report No.28 of 2008. 3. On completion of the requisite formalities, the documents/ record was placed before Mr. Muhammad Asghar Khan, Additional Collector-II, Customs, Custom House, Peshawar and in the light of the proceedings so carried out during the adjudication of the case, he vide Order-in-Original No.279-281 of 2008 made an order of outright confiscation of the Dry Fruit, however, with an order for the release of the carriage in question in terms of section 181 of the Customs Act, 1969 against which an appeal was preferred by the appellant before the learned Collector Customs (Appeals), Peshawar who vide Order-in-Appeal No.15-17 of 2009 while setting aside the impugned Order-in-Original, released the seized/confiscated goods along with the vehicle unconditionally. Feeling aggrieved of the unconditional release of the offending goods (Dry Fruit) and the vehicle by the Collector Customs (Appeals), the Collector Customs, Federal Excise and Sales Tax, Customs Collectorate, Peshawar filed the appeal in hand, against the aforesaid unconditional release of the goods and carriage, inter alia, on the following grounds:--

(i) Because the impugned is against the law on subject and facts on record, hence liable to be set aside;

(ii) Because the learned Collector (Appeals) has given undue relief to the respondents by misconstruing the relevant provisions of law ;

(iii) Because reliance has wrongly been placed on case-law cited in the impugned order as the facts and circumstances in those cases were entirely different from the instant case;

(iv) Because the learned Collector (Appeals) has wrongly discarded the expert opinion given by the Horticulturist of Agriculture Department in the instant case;

(v) Because the learned Collector (Appeals) if was doubtful about the sample drawn earlier, ought to have directed drawing of fresh samples in the presence of respondent/counsel to be sent to the same expert and not to some non-technical persons;

(vi) Because the learned Collector (Appeals) has misread the provisions of law and acted against the spirit and intention of legislature as provided under section 187 of the Customs Act, 1969;

(vii) Because the learned Collector (Appeals) has erred in law ignoring that the respondents have not discharged the onus that the Dry Fruit seized were either of local origin or legally imported and lawfully possessed;

(viii) Because the learned Collector (Appeals) has wrongly taken into consideration the certificate of EDO, Agriculture Extension and has arrived at a wrong conclusion on its strength, as the same by no means conclusively proves that the Dry Fruit was a produce of Baluchistan;

(ix) Because the learned Collector (Appeals) has wrongly released the confiscated goods and vehicle despite lack of any proof of its legal import or lawful possession. 4. I have heard Barrister Syed Mudassar Ameer, counsel for the appellant-department assisted by the representatives of the department and Mr. Isaac Ali Qazi, counsel for the respondents and have gone through the record of the case. 5. The record on perusal would reveal that Truck No.TKA-621 loaded with Dry Fruit on its way to Peshawar from Quetta when reached at D.I. Khan Bannu Road was intercepted by the Customs staff and on thorough examination there was found the following kinds of Dry Fruit.

During the course of investigation, the Customs staff secured opinion of two shopkeepers namely Sher Afzal, Dry Fruit Merchant, Charsi Gate, Kohat and Taj. M. Dry Fruit Merchant, Main Bazar, Kohat to verify as to whether the Dry Fruit so apprehended/seized was of foreign origin or a local produce, for which both the (afore mentioned) shopkeepers stated it to be of foreign origin. The Customs staff separated samples from the bulk and were sent to Agriculture Research Institute Tarnab, Peshawar for the determination of its origin. Mr. Jamsher Khan, Horticulturist, Agricultural Research Institute, Tarnab, Peshawar after the examination of the samples vide Letter No. 1697/Hort dated Tarnab the 3-12-2008, considered to be an Expert Report, which is as under:--

"Kindly refer to the seizure case No.28 of 2008 dated 27-11-2008 (A/S unit Kohat) and your office No.7489 dated 2-12-2008 on the captioned subject.

2. We examined the samples of Dry Zeera and Dry Apricots send by the Customs authority, Kohat, we hereby confirmed that the subject items belong to foreign country and not to Pak. Origin. As far as the quality and quantity are concerned it could be either the origin of Afghanistan or Iran and report is hereby forwarded for further necessary action please.

(Sd.)

(JAMSHER KHAN)

Horticulturist Agricultural Research

Institute, Tarnab, Peshawar." 6. On the other hand learned counsel for the respondent/owners furnished Certificate No.792 of 2008 dated 26-11-2008 whereby Executive District Officer; Agriculture Extension, Quetta reported that in the year of 2006-2007 a considerable good number of Dry Fruit was produced locally as per details hereunder

The said certificate, however, was objected to by the Customs Authorities on the grounds that this was not an official document as was produced by the counsel for the respondents and not by the Agriculture Department, Quetta and was not considered. It was at the appeal stage when Collector Customs (Appeals) got verified Letter No.704/EDO/ Acctt. Dated Quetta the 29th December, 2008 the document furnished by the counsel, to be authentic document besides having furnished the detail record of the local produces of fruit consisting of two sheets. Apart from it, the Chamber of Commerce and Industry, Quetta, Baluchistan also confirmed the fruit in question to be a local produce of Baluchistan and similarly Anjuman Dry Fruit .and Kariana Thoke Merchants, Quetta. affiliated with Chamber of Commerce and Industry, Quetta, Baluchistan also confirmed me said fruit to be the local produce of Baluchistan. 7. At present there are two sets of opinions, one furnished by the Agricultural Research Institute, Tarnab, Peshawar prepared by Mr. Jamsher Khan, Horticulturist whereby he has stated, the sample of the Dry Fruit sent to him to be of foreign, origin with further observations that the quality reflected the same to be "either of Afghanistan origin or an Iranian produce". This report of the Horticulturist of Agricultural Research Institute, Tarnab, Peshawar by itself is open to criticism because he himself was not certain whether it was of Afghanistan origin or an Iranian produce and his report taken into consideration by the Adjudicating Officer appears to be based on ignorance of the fact that such a fruit is the local produce of Baluchistan. One gets surprised when comes across with another report of the said Horticulturist namely Mr. Jamsher Khan in another similar type of case with similar type of Dry Fruit (Report No.1723/Hort dated Tarnab the 6-1-2009) whereby he has stated Almonds hard, cumin (Zeera), apricot (dried), Fig dried, Bartang (dried), pulp of apricots (dried), coriander husk (Chilka), Anar Dana (Pomegranate) and Almond (without shell) to be a local produce of Baluchistan. Thus both these reports would make his reports highly questioned as to whether the said dry fruits how (vide Letter No.1697/Hort dated Tarnab the 3-12-2008) could be of foreign origin and as to how another similar produce could be (vide Report No.1723/Hort dated Tarnab the 6-1-2009) a local produce putting it hard to understand that which one of the two opinions is correct whereas the relevant quarter i.e., office of the Executive District Officer, Agriculture Extension, Quetta has furnished full details with specific areas, quality and quantity of the Fruit(s) to be a local produce. Again, a careful perusal of the report prepared by Horticulturist of Tarnab and relied upon would reveal that it pertains to two items only i.e., Dry Zeera and Dry Apricot whereas, the Expert Report of the offending goods (Dry Fruit) the subject-matter of the appeal in hand is Hard Almond and Injeer (dried) besides Dried Apricot and for this reason "too, the report, relied upon is defective being silent about two major items of the case property even then the same was relied upon, certain performance of the department/appellant and adjudication of the case in a slip-shod manner which is against the very judicial norms. 8. During adjudication, the learned Collector Customs (Appeals) vide his Letter No.1943 dated 26-12-2008 directed the Superintendent Customs, Kohat for securing fresh samples for its examination through expert so as to ascertain whether it was a local produce or of foreign origin which order of the Collector was never complied with by the Superintendent Customs, Kohat with a written response thereto that "once the Expert Report having come to hand would not call for another opinion" which conduct on the part of the Superintendent Customs would amount to the exercise of an influence upon the Customs Appellate Forum to follow the footprints as laid down through Order-in-Original from which an inference could easily be drawn to the effect that the detention of the truck and seizure of the Dry Fruit was based on mala fide and ulterior motives certain performance of the customs seizing staff, highly lamentable being far beyond the scope of the law on the subject. 9. One again gets surprised that as to what made Collector Customs to have filed the appeal to question the verdict of the Collector Customs (Appeals) when the record on face of it would negate their stance. Anyhow, Collector Customs, (appellant) has miserably failed to prove his contention and the appeal in hand even is not worth to proceed with and the impugned Order-in-Appeal being based on proper appreciation of facts on record and law on the subject call for no interference by this Tribunal, as such, the appeal before me being devoid of any substance stands hereby dismissed. 10. As rest of the two appeals Cus.18/PB/2009 and Cus.19/PB/2009 filed by the appellant/Collector Customs, Peshawar involving almost similar question of law and identical in nature, also stand hereby dismissed by application of the judgment of this appeal, mutatis mutandis to the said appeals as per details, hereunder:--

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