Agha MASIHUDDIN VS ADDITIONAL COLLECTOR OF CUSTOMS, PREVENTIVE COLLECTORATE, KARACHI, 2009 PTD-KARACHI-HIGH-COURT-SINDH 523 (2009)

Customs Act (IV of 1969)---

----Ss. 156(89), 168, 171 & 196---Notifications S.R.O. No.574(I)/2005 and S.R.O. No.179(I)/2006---Smuggled vehicle---Imposition of redemption fine---Vehicle in question was seized by customs authorities under S.168 of Customs Act, 1969, and applicant produced fake import documents, therefore, authorities declared the vehicle as smuggled one liable to confiscation---Authorities allowed release of vehicle subject to payment of redemption fine 'equal to 30% of the value of the vehicle---Plea raised by applicant was that he was bona fide purchaser and neither he smuggled the vehicle nor prepared; forged documents---Validity---When applicant purchased costly vehicle he should have inquired into and verified documents of vehicle---Though seller of vehicle in question was available in town but applicant neither lodged any F.I.R. against him nor filed suit for recovery---For last more than three years, applicant did not bother to initiate any proceedings against the seller, which prima facie, showed that applicant had conscious knowledge that vehicle was a smuggled one---High Court declined to interfere with orders passed by customs authorities---Reference was dismissed in circumstances.

Ch. Muhammad Ashraf v. Deputy Superintendent, Anti-Smuggling Squad Central Excise and Land Customs Department PLD 1977 Lahore 300 and Abdul Rauf Khan v. Collector Central Excise and Land Custom 1980 SCMR 114 ref.

Abdul Wahab Baloch for Applicant.

Ghulam Haider Shaikh for Respondent No.1.

Aqeel Ahmed Abbasi, for Respondent No.3.

ORDER

This Reference is directed against the impugned order, dated 18-7-2007 passed by the learned Member (Technical-II, Customs, Excise and Sales Tax Appellate Tribunal, Karachi, Bench-II) whereby the appeal of the applicant was dismissed.

Precisely, the facts of the case are that a vehicle, Nissan Safari Petrol Jeep bearing Registration No.BC-5965, as intercepted by the officials of the Directorate of Intelligence and investigation (Customs and Excise) on 23-10-2005 on the ground that the said vehicle had been unlawfully brought into the country. Notice under section 171 of the Customs Act, 1969 (herein after referred to as -`Act, 1969') was served upon the applicant. The occupant of the vehicle had produced the import documents of the said vehicle, but after inquiry, it revealed that the import documents were fake, therefore, the vehicle was seized under section 168 of the Act, 1969. In consequence, a show-cause notice was served upon the applicant and thereafter, proceedings were initiated and it was declared that the vehicle was a smuggled one and has been registered under fake documents and was, therefore, liable to confiscation. However, the same was allowed to be released to the applicant subject to payment of redemption of fine equal to 30% of the value thereof, in terms of section 181 of the .Act, 1969, read with notifications S.R.O. No.574(I)/2005 and S.R.O. No. 179(I)/2006. The said order was challenged before the two lower forums but the appeals were dismissed.

It is, inter alia, contended by the learned counsel for the applicant that the appellant was a bona fide purchaser of the vehicle and it was a mistake on the part of the concerned government department, who had registered the vehicle on the basis of forged import documents. That there was no proof that the applicant had smuggled the said vehicle or even prepared the forged documents. Further, that the impugned fine was more than the value of the vehicle. The learned counsel relied upon the case of, Ch. Muhammad Ashraf v. Deputy Superintendent, Anti-Smuggling Squad Central Excise and Land Customs Department, as reported in PLD 1977 Lahore 300.

Conversely, Mr. Aqeel Ahmed Abbasi, learned counsel for the respondent, has vehemently opposed this reference and supported the impugned order, and has further argued that the impugned order actually was in favour of the appellant as, instead of imposing a 10 times fine upon the appellant as provided under section 156 subsection (89) of the Act, 1969, the Department had released the vehicle subject to the payment of only 30% of fine. He has relied upon the case of Abdul Rauf Khan v. Collector Central Excise and Land Custom reported in 1980 SCMR 114.

Heard both the counsel, perused the record and the judgments cited by both the parties.

It is an admitted fact that the import documents were declared bogus and the vehicle was rightly seized and adjudicated, and only as a result of the same, confiscation proceedings were initiated. We are of the view that the appeal has rightly been dismissed by the impugned order. This was a case of sheer luck of the Applicant that no criminal proceedings had been initiated against him, and that even otherwise, ten times fine under subsection (89) of section 156(1) of the Act, 1969 was not imposed upon him, but that the vehicle was released subject to payment of only a mere 30% of fine. The applicant should have verified the import documents of the vehicle prior to purchase of the vehicle.

For the last 5 to 10 years mostly jeeps plying in Karachi were intercepted by the officials of the Customs Intelligence and were found to be smuggled vehicles. This is an open secret that in the Balochistan area such vehicles ply without any registration, are available at very cheap prices, and in many cases, even the Registration Authority simply took the ground that on the basis of documents supplied by the applicants they registered the vehicles. Another anomaly is that the Registration Authorities were not in possession of original files of such vehicles. The applicant is a resident of Shikarpur, which lies near the border areas of Balochistan, and therefore, such fact should be in the knowledge of all the citizens of the region. Therefore, when the applicant purchased the said costly vehicle he should also have inquired into and verified the documents of the vehicle. Even otherwise, the learned counsel for the applicant, in reply to a question, has stated that the seller of the said vehicle was available in the town. In such circumstances, the applicant still had two options, (1) to lodge an F.I.R. against the said seller, and (2), to file suit for recovery. However, for the last more than three years he has not bothered to initiated any proceedings against the seller, which, prime facie, shows that the applicant had conscious knowledge that the subject vehicle was a smuggled one.

In the above circumstances, the impugned order appears to be well reasoned and needs no interference.

This Reference is dismissed in the above terms.

M.H./M-20/KReference dismissed.