Ch. MAQBOOL AHMED VS CUSTOMS, FEDERAL EXCISE AND SALES TAX, APPELLATE TRIBUNAL, 2009 PTD-SUPREME-COURT 77 (2008)

(On appeal from the judgment of the Lahore High Court, Multan Bench, dated 1-4-2008 passed in C.R.A. No. 7 of 2007).

Customs Act (IV of 1969)---

----S. 156(1), Cl. 89---S.R.O. No.574(I)/2005 dated 6-6-2005---Constitution of Pakistan (1973), Art.185(3)---Smuggled vehicle with proved tampered chassis frame and not a smuggled vehicle with non-tampered chassis frame---Held, outright confiscation of the vehicle through order-in-original under Cl.89 of S.156(1) of the Customs Act, 1969 read with S.R.O. No.574(I)/2005 dated 6-6-2005 was lawfully passed and did not suffer from any illegality---Petition for leave to appeal against judgment of the High Court upholding said order was dismissed---Principles.

Muhammad Naeem Qazi, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

M. Bilal, Sr. Advocate Supreme Court with Mehmood A. Sheikh, Advocate-on-Record for Respondents.

Date of hearing: 24th September, 2008.

ORDER

M. JAVED BUTTAR, J.---Additional Collector Customs, Sales Tax and Federal Excise (Adjudication), Multan vide his Order-in-Original No.5 of 2006, dated 19-1-2006 ordered outright confiscation of the vehicle which was recovered from the petitioner's possession, under clause 89 of section 156(1) of the Customs Act, 1969 read with S.R.O. No.574(I)/2005, dated 6-6-2005. Collector (Appeals), Customs, Sales Tax and Federal Excise, Multan vide his Order-in-Original No.193 of 2006, dated 1-3-2006 dismissed petitioner's appeal. Customs, Federal Excise and Sales Tax Appellate Tribunal, Bench II: Lahore vide its judgment, dated 27-3-2007 dismissed the petitioner's appeal. In the Customs Reference Application No.7 of 2007 of the petitioner, amongst other following questions were proposed:--

"(i) Whether the learned Appellate Tribunal erred in law by holding that applicant's vehicle may not be released against duty and taxes?

(ii) Whether the learned Appellate Tribunal has fallen in error that he cannot release tampered vehicles against duty and taxes under section 181 of the Customs Act, 1969?"

A learned Division Bench of Lahore High Court, Multan Bench on 1-4-2008 dismissed the Reference Application. Proposed question No.1 was answered in negative while the other questions did not require consideration. Hence, this petition for leave to appeal.

2. Relevant facts are, that Customs Staff of Anti-Smuggling Organization, Multan intercepted Mitsubishi Pajero Intercooler Turbo Low Roof Jeep Model 1991 on 6-12-2005 bearing registration No.BA-0034 Karachi. On physical examination of vehicle, it was observed that its chassis frame was cut and another piece of chassis frame bearing present chassis number was welded. It was further observed that the said vehicle was Mitsubishi Intercooler Turbo Exceed Low Roof, Pajero Jeep in its original colour, condition fitted with genuine body parts and accessories of the same model, whereas the particulars entered in the registration book revealed that it was Mitsubishi Pajero Jeep, Model 1987. This gave rise to strong belief that the chassis frame of the smuggled vehicle was manipulated to give it the cover under the garb of registration documents of an old model vehicle. The vehicle' was sent to FSL, Islamabad for laboratory test and they reported as under:--

"(a) Chassis number neither grinded nor tampered.

(b) Chassis number is not self punched.

Formation and alignment of the digits is normal.

(c) The chassis frame is found cut and welded."

In view of the said expert opinion and photographs of the chassis frame of the vehicle and other facts, the matter was sent for adjudication. Show-cause notice was issued on 7-1-2006, which was duly replied by the petitioner. After hearing and examining the record, the learned Additional Collector ordered for outright confiscation of the vehicle vide the order mentioned above.

3. In appeal before the Collector (Appeals), it was contended as under:--

"(i) That the vehicle is not smuggled one and was got registered by MRA, Karachi against registration No. BA-0034 after verifying the auction documents. They had replaced upper body of vehicle and modification, replacements of body and accessories do not made the vehicle smuggled.

(ii) That the seizing agency had himself obtained Forensic Science Laboratory report without any information and participation of the party. The lab report is doubtful and carries no weight in the eyes of law and needs second lab."

The Collector (Appeals) did not agree with the contentions and dismissed the appeal vide order, dated 1-3-2006. At the stage of second appeal before the Tribunal, it was contended that vehicle in question may be got re-examined from any other FSL as the petitioner's request had not been acceded to by the Collector (Appeals).

4. The request was opposed by the department on the grounds that after the vehicle's examination from the FSL Islamabad, it was also got re-examined from FSL, Lahore, and the said report also disclosed that the chassis frame had been cut and welded abnormally. However, in view of the petitioner's contention, that he had not been associated in the examination of the vehicle on both the occasions, learned Tribunal, in the interest of justice, granted the request and it was directed that the confiscated vehicle, be got re-examined from FSL, Peshawar. The needful was done and the report of re-examination of the vehicle obtained from FSL, Peshawar reads as under:--

"The original chassis frame has been cut and a piece measuring 20" X 4" has been welded, which bears the present number."

5. We have heard the learned counsel for the parties at length and have also carefully examined the entire record with their able assistance.

6. All the three Laboratories in their reports had concluded that the chassis frame was cut and welded. Keeping in view the request of the petitioner, report of FSL, Peshawar was obtained after associating him in the said proceedings. No objection was filed by the petitioner in regard to the report obtained from FSL, Peshawar. The contention that the objections had been raised in regard to the said report but the same were not recorded, is contrary to the record. It thus stood established that the chassis frame was found cut and welded. It could, therefore, be safely concluded that the particulars entered in the registration book related to another vehicle especially when the said particulars did not tally with the model etc. of the vehicle recovered from the petitioner. Obviously, the chassis frame of the smuggled vehicle was manipulated to give it the cover of an older different model vehicle entered in the registration documents. It was also urged that the expert ought to have been summoned so that petitioner could cross-examined him in regard to his opinion/report. Such a request was made before the Tribunal as well which was correctly declined because three different experts had given the same opinion. Even otherwise, presumption of truth is attached to the reports of the FSL laboratories. The contention of the learned counsel for the petitioner that the petitioner is a bona fide fourth purchaser and the vehicle may be released on payment of duties and taxes on the payment of 30% of the duties and taxes under S.R.O. No.179(I)/2006, dated 2-3-2006, has also no force. Such a request was made before the Hon. High Court as well which was lawfully declined because it is a case involving a smuggled vehicle with tampered chassis frame and not a case of a smuggled vehicle with non-tampered chassis frame. Outright confiscation of the vehicle through order-in-original under clause 89 of section 156(1) of the Customs Act, 1969 read with S.R.O. No.574(I)/2005, dated 6-6-2005 was, therefore, lawfully passed and did not suffer from any illegality. Learned Judge of the High Court correctly answered the proposed question No.1 in the negative and dismissed the Reference Application.

In view of the above mentioned, we find no merit in this petition which is dismissed. Leave refused.

M.B.A./88/SCPetition dismissed.