KHILJI ARIF HUSSAIN, J.-Aggrieved by the order passed by the learned Customs Excise and Sales Tax Appellate Tribunal Karachi Bench II, dated 11-11-2002 in Customs Appeal No. 20 of 1998 upholding the order in original dated 2-9-1997, the appellant has preferred this appeal under section 196 of the Customs Act, 1969. The appeal was admitted for consideration of following question of law:--

"Whether the Customs, Excise and Sales Tax Appellate Tribunal has failed to consider S.R.O. 714(I)/93 dated 14-11-1989."

Brief facts for the purpose of deciding the appeal are that the appellant arrived at Karachi Airport from Dubai on 5-3-1997 and on the basis of some advance information about the possible smuggling of gold the Customs Authorities carried out the search and recovered 50 slabs of gold from the body of the appellant. The respondent booked the appellant on smuggling charges and gold was first seized and later on confiscated vide order dated 2-9-1997 by the Collector of Customs Preventive.

Heard Chaudhry Muhammad Iqbal, learned counsel for the appellant and Mr. Muhammad Nadeem Qureshi, learned counsel for the respondent.

Chaudhry Muhammad Iqbal, learned counsel for the appellant, argued that at the relevant time- there was no restriction on bringing the gold as accompanying baggage from any place outside Pakistan and the Tribunal committed error in law treating the import of gold in the country as restricted item while relying upon the Notification ECS/48, dated the 1st July, 1948, issued under section 8(1) of the Foreign Exchange Regulation Act, 1947 restricting import of gold into the country except on production of an import authorization from State Bank of Pakistan and declaration of Customs. In support of his contention learned Advocate for the appellant heavily relied upon S.R.O. No.714(I)/93 dated 14th November, 1989, which reads as under:--

"S.R.O. No.714(I)/93.---In exercise of the powers conferred by section 19 of the Customs Act, 1969 (IV of 1969), Section 13 of the Sales Tax Act, 1990, and subsection (2) of section 5 of the Finance Act, 1985 (1 of 1985), and in supersession of this Ministry's Notification No. S.R.O.116(I)/89, dated 14th November 1989 the Federal Government is pleased to exempt gold failing under Heading No.71 of 2008 of the First Schedule to the Customs Act, 1969 (IV of 1969), if imported as accompanied baggage from so much of the customs duty as is in excess of 2% ad valorem, regulatory duty leviable under subsection (2) of section 18 of the Customs Act, 1969 (IV of 1969) whole of sale tax and Iqra surcharge."

He has further produced the Notification No. FE.1, 94-SB dated 20th March, 1994, which reads as follows:--

"In pursuance of the Government of Pakistan Notification No.1(2) ECS/48 dated the 1st July, 1948, and in supersession of State Bank of Pakistan Notification No.F.E.1/89 SB, dated 2nd December, 1989, the State Bank of Pakistan is pleased to permit the import of pure gold which also falls under Heading No.71 of 2008 of the First Schedule to the Customs Act, 1969 (IV of 1969) into Pakistan as accompanied baggage from any place outside Pakistan in accordance with the import policy order as amended from time to time."

He has urged that in the import policy for the year 1996-97, the import of gold was not included in the negative list and consequently there was no restriction on import of gold in accompanied baggage.

On the other hand Mr. Muhammad Nadeem Qureshi learned Advocate for the respondent argued that on the Airport when the appellant was interrogated he had not declared gold which was recovered from his body search and accordingly respondent has rightly confiscated the gold.

We have taken into consideration arguments advanced by the learned advocates for the parties. It appears that while passing the order in original, Collector of Customs committed error of law on relying upon Notification No.1(2)ECS/48, dated the 1st July, 1948 as by another Notification F.E./94-SB, dated 20th March 1994, the State Bank of Pakistan permitted the import of pure gold under Heading No.71 of 2008 of the First Schedule to the Customs Act, 1969 into Pakistan as accompanied baggage from any place outside Pakistan in accordance with the import policy order. We have asked Mr. Muhammad Nadeem A Qureshi, learned counsel for the respondent, to show any violation of the import policy, while bringing the gold as accompanied baggage. The learned Advocate failed to point out any such restriction or violation of import policy.

In view of above the question is answered in affirmative and the order of Tribunal is modified accordingly. Consequently the respondent is directed to release the gold confiscated on payment of tax in terms of S.R.O. No.714(I)/93 date 4-11-1989.

Order accordingly.