KARACHI: A two-member bench of the Sindh High Court (SHC) comprising Justice Junaid Ghaffar and Justice Agha Faisal released detailed judgment and declared that M/s Digicom Trading Private Limited and others are found entitled to avail benefit of amnesty scheme as per order dated 3.6.2019 which has attained finality; but is only confined to the imposition of the fine which is zero (0%); and not in respect of penalty; hence, the order the Appellate Tribunal stands modified to that extent.
On 23 February 2021, court observed in its order that “petitions (by petitioners) and Special Customs Reference Applications (SCRAs) by the department (“Applicant”) are somewhat connected with each other.
Through petitions, the petitioners have prayed that they are entitled for the benefit of SRO 1455(I)/2018 dated 29.11.2018 (SRO 1455), whereby, some amnesty scheme was promulgated in respect of imposition of fine on certain categories of goods. The SCRAs have been filed by the 2 Applicant being aggrieved with a common judgment dated 25.09.2018 in Custom Appeal Nos.K-351, K-352 and K-410 of 2018, passed by the Customs Appellate Tribunal, Karachi, in favour of the petitioners whereby fine and penalty imposed through Order(s) in Original by the authorities below, have been remitted; and have proposed various questions of law. The petitioners have not impugned the said order and now the issue before us is only confined to the question of whether the petitioners are liable for pay and fine and penalty.
Record further reflects that even a request was made by the petitioners vide letters dated 27.12.2017 and 1.1.2018 to accept the duty and taxes and compound the offence under Section 32(B)1 of the Act (see Para 15 of the Tribunals order), and perhaps was never attended to by the department. In fact, the Tribunal in its final conclusion has also directed to consider the same and decide it accordingly and at the same time has remitted the penalty. How this could be done is not understandable. Section 32B itself does not provide for any exemption or concession in payment of penalty. If accepted, the offence could have been compounded in respect of fine or may be in respect of any criminal proceedings (which is not a subject matter before us), and therefore, when appreciated, the stance of the Petitioners, by itself is in respect of imposition of fine and was never a case in respect of penalty, which they agreed to pay when a request under s.32B ibid was made.
It further appears that though the petitioners have pleaded that they are entitled for the benefit of the amnesty scheme in question, and at the same time their case is that the allegation of smuggling is unfounded; however, the amnesty scheme itself is specifically in respect of smuggled goods, whereby, imposition of fine has not been exempted; but has been reduced to zero (0%), which resultantly implies that the goods are to be confiscated; but are to be redeemed against zero (0%) fine.
Therefore, in our considered view, the conduct of the petitioners does not merit any consideration warranting remission of fine and penalty as ordered by the learned Appellate Tribunal. It only has to be considered to the extent of fine; but that too, not on merits; but because of the entitlement under the amnesty scheme.
In view of hereinabove facts and circumstances of the case, the petitions as well as the SCRAs are disposed of by holding that the petitioners are found entitled for the benefit of amnesty scheme as per order dated 3.6.2019 which has attained finality; but is only confined to the imposition of the fine which is zero (0%); and not in respect of penalty; hence, the order the Appellate Tribunal stands modified to that extent.
The petitioners would be entitled for return of the amount of fine; but are held liable for payment of amount of penalty adjudged against them. The Questions of law proposed are answered accordingly. 7. With these observations, the petitions and the SCRAs stand disposed of in the above terms. Office to send a copy of this order to the Customs Appellate Tribunal in terms of s.196(5) of the Act”.
