SAFDRULLAH VS SECRETARY, REVENUE DIVISION, ISLAMABAD, 2008 PTD-FEDERAL-TAX-OMBUDSMAN-PAKISTAN 617 (2004)

Customs Act (IV of 1969)---

----Ss.201(1), 168 & 169---Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S.2(3)---Criminal Procedure Code (V of 1898) S.550---Procedure for sale of goods and application . of sale proceeds---Vehicle seized being smuggled was outrightly confiscated---Vehicle was auctioned after fulfilling all legal formalities---Later, with the intention of selling it further took the vehicle to Forensic Science Laboratory, for chemical examination for satisfaction of the intended buyer---Chassis number was proved to tampered with---Police seized the vehicle under S.550 of the Criminal Procedure Code, 1898, being snatched at gun point---Complainant contended that they were deprived of the ownership of vehicle for which they had paid good money without knowing the background of the vehicle that it was stolen one and prayed that either the ownership of the vehicle be restored to the complainants or auction amount and compensation for the expenses borne by them be refunded---Customs Authorities pleaded that complainant should have the chemical examination done on his own prior to taking the possession of the vehicle after the successful bid---Validity---Customs authorities auctioned the vehicle bearing tampered chassis number; it was their duty to have the particulars of the vehicle ascertained soon after its seizure as the facilities of forensic chemical test and services of C.P.L.C. were available to them which were not utilized---Such acts of omission were contrary to law, rules and regulations and were a departure from the established practice and procedure for which no valid reasons could be offered by the Department---Such act of omission squarely fell in the definition of maladministration---No reason was given as to why the successful bidder should suffer because of the acts of omission by the customs authorities---Expenses incurred on the repair of the vehicle were not verifiable---Payment of Capital Value Tax and Registration Fee and other registration expenses were not paid to, the customs authorities---Only amount which the complainant could claim from the customs authorities was the auction price---Federal Tax Ombudsman recommended that the auction price paid by the Complainant amounting to Rs,850,000 be refunded to him and that Central Board of Revenue to issue instructions that in cases of seizure of vehicles in use, Customs Authorities shall ascertain through forensic chemical test and the services of C.P.L.C. or any other Police Service available in the area for this purpose, before passing confiscation order, that it is not a stolen vehicle.

Safdarullah and Muhammad Bakhtiar for the Complainants.

Muhammad Arshad Khan, DC, Customs, Abdul Razzaq, Inspector, Anti Car Lifting Cell and Asrar Hussain Rizvi for the Respondent.

FINDINGS/DECISION

JUSTICE (RETD.) SALEEM AKHTAR (FEDERAL TAX OMBUDSMAN).-The Complaint relates to a Pajero Car, 1993 Model which was bought by the Complainant No.1 in an auction conducted by the Custom Authorities, Peshawar, showing Chassis No.CONV4402PJ00188. Later, this vehicle was claimed to be a stolen vehicle with a different Chassis number.

2. The brief facts of the case are that Customs Mobile Squad, Mansehra, seized a Pajero Intercooler Turbo, Model 1993 from 'the possession of one, Mr. Asad Ali Shah taking it to be a smuggled vehicle on 18-9-1999. The Additional Collector (Adjudication), Peshawar, vide his Order-in-Original ordered its outright confiscation. After fulfilment of all the legal formalities, the vehicle was auctioned on 8-1-2001 to the Complainant No.1, Mr. Safdarullah, being the successful bidder who offered the highest bid of Rs.850,000. Later on he sold this vehicle to his cousin, Mr. Muhammad Bakhtiar. The latter, with the intention of selling it further took the vehicle to Forensic Science Laboratory, Islamabad for chemical examination for the satisfaction of the intended buyer. At this juncture, it was discovered that the genuine chassis No. was CONV440NJ01096. When the chassis number proved tampered, Islamabad Police seized the vehicle under section 550 of Cr.P.C. Later on, according to the Police authorities, this vehicle was turned out to be the one, which was snatched at gun point on 5-4-1999 from Karachi. The plea of the Complainants was that they were deprived of the ownership of a vehicle for which they had paid good money without knowing the background of the vehicle that it was a stolen one. It was prayed that either the ownership of the vehicle be restored to the Complainants or auction amount and compensation of the expenses amounting to Rs.1,239,226 borne by them be refunded.

3. In his reply, the Collector of Customs, Peshawar accepted the facts of the case to the extent that it was seized as a smuggled vehicle. The adjudication was made and finally it was auctioned to the Complainant No.1. However, he stated, the fact of the tampered chassis number never came under consideration as it was never raised by anybody till the investigation with regard to this complaint started. He further stated that the auction was conducted in an open and transparent manner on "as is where is" basis. Once the vehicle was handed over to the successful bidder, no verification of any sort was possible in view of the fact that it became the property of the bidder and he was free to make any changes/alterations etc. The vehicle was handed over on 24-10-2001 and the verification of the chassis number was made on 2-5-2004 i.e. more than two years later. It was prayed that the complaint under consideration be rejected.

4. The Complainants made the following persons as the Respon dents:-

(1) The Collector Customs, Custom House, Peshawar.

(2) The Assistant Superintendent of Police, Anti Car Lifting Cell (ACLC), Islamabad.

(3) The Controller, Citizens Police Liaison Committee, Central Reporting Cell, Sindh Governor Secretariat.'

A report was also obtained from the Controller, Citizens Police Liaison Committee (CPLC), Central Reporting Cell, Sind Governor's Secretariat. He, in his report dated 9-7-2004 stated, inter alia, that according to the prevalent practice, the Customs Authorities ought to have verified through the Police whether the vehicle was stolen from any part of the country. The CPLC maintained the record of all vehicles stolen from anywhere in the country. Had the Customs authorities checked the antecedents of the said vehicle before auctioning it, the correct facts could have been reported to them. The report further added that the Customs authorities ought to have had the vehicle chemically examined to ascertain the correct chassis number. Since it was not done there was no reason for the successful bidder to suffer the loss. The amount paid by him be refunded to him and the possession of the vehicle should be restored to the legal owner.

5. The Inspector of Police representing ACLC Islamabad also attended and narrated the circumstances of the seizure of the vehicle by the police under section 550 of Cr.P.C. He confirmed that the genuine chassis number was the one which transpired after the chemical examination and as stated in para. 2 supra.

6. The D.R. reiterated the arguments of the Collector given in his written reply. Furthermore, he stated that the Complainant should have had the chemical examination done on his own prior to taking the possession of the vehicle after the successful bid. He held the view that after the lapse of more than two years, it was not possible to determine whether chassis number which transpired now could be called genuine. He found the report of Forensic Science Laboratory, Islamabad unreliable. It was decided that another chemical examination of the vehicle may be conducted in the presence of a representative of Collectorate of Customs, Peshawar.

7. While these proceedings were on one, Mr. Asrar Hussain Rizvi, claiming to be the owner of the stolen vehicle, filed an application requesting that he be associated with the proceedings as one of the Complainants. In his application he narrated the circumstances of import of the vehicle after due payment of customs duty and other charges, his purchase of it, its, snatching away en gunpoint etc. and produced necessary documents in support of his claim.

8. Second Forensic test of the chassis number of the vehicle was done. A report by the Inspector (Customs) by the name of Mr. Said Zaman dated 11-8-2004 was produced and placed on file. Its contents in full are reproduced as under--

"Re-examination of Mitsubishi Intercooler Pajero Jeep bearing Registration IDL-4773 was carried out in my presence on 10-8-2004 in Forensic Science Laboratory Capital Territory Police Islamabad and observed as under---

CHASSIS NUMBER BEFORE CHEMICAL TREATMENT

"CONV440PJOO188"

CHASSIS NUMBER AFTER CHEMICAL TREATMENT

"CONV440NJ01096"

(Sd.)

(SAID ZAMAN)

Inspector (Customs)

DC/DryportCustoms House, Peshawar"

Photostat copy of the chassis numbers before and after chemical treatment was also produced and placed on file.

9. In conclusion, it could be said that the two Forensic tests, one done in the presence and to the satisfaction of a representative of Customs' Department,' prove without any doubt the fact that Customs authorities auctioned the vehicle bearing a tampered chassis number. Besides, it was their duty to have the particulars of the vehicle ascertained soon after its seizure. The facilities of forensic chemical test and the services of C.P.L.C. were available to them which were not utilized. These acts of omission were contrary to law, rules and regulations and were a departure from the established practice and procedure for which no valid reasons could be offered by the Respondent. The act of omissions squarely falls in the definition of maladministration within the meaning of Section 2(3)(i)(a) of the Establishment of Office of FTO Ordinance, 2000. There is no reason why the successful bidder, Mr. Safdarullah should suffer because of the acts of omission by the customs authorities stated above.

10. The question of the compensation due to the complainant was also considered. The complainant claimed the refund of payment of Auction Price, CVT, expenses on repair of the vehicle, Registration Fee and other registration expenses. The expenses incurred on the repair of the vehicle were not verifiable. The payment of CVT and Registration Fee and other registration expenses were not paid to the customs authorities. Therefore, the only amount which the complainant can rightfully claim from the customs authorities is the auction price amounting to Rs.850,000.

11. The application of Mr. Rizvi, who claims to be the real owner of the vehicle, was also considered. Such claim falls outside the jurisdiction.

12. In view of the above discussion, it is recommended that---

(i) The auction price paid by the complainant amounting to Rs.850,000 be refunded to him.

(ii) C.B.R. issues instructions that in cases of seizure of vehicles in use, Customs shall ascertain through forensic chemical test and the services of CPLC or any other Police Service available in the area for this purpose, before passing confiscation order, that it is not a stolen vehicle.

(iii) Compliance of the above-mentioned recommendation be reported within 30 days of its receipt by the Revenue Division.

C.M.A./318/FTOOrder accordingly.