MUHAMMAD TARIQ VS COLLECTOR OF CUSTOMS, 2014 PTD-CUSTOMS-APPELLATE-TRIBUNAL-KARACHI 865 (2013)

2014 P T D (Trib.) 865

[Customs Appellate Tribunal, Karachi]

Before Ghulam Ahmed, Member (Technical-II)

MUHAMMAD TARIQ

Versus

COLLECTOR OF CUSTOMS and another

Customs Appeal No. K-491 of 2013, decided on 30/10/2013.

Customs Act (IV of 1969)---

----Ss. 2(s), 16, 156(1) (8) (77) (89), 169, 171 & 187---Smuggled/non-duty-paid vehicle, confiscation of---Vehicle registered with "Motor Registration Authority"---Scope---Customs officials intercepted the vehicle owned by appellant and asked for production of legal import documents regarding lawful possession/import of said vehicle---Appellant provided running page of Registration Book issued by Excise and Taxation Officer along with copy of delivery order issued by Principal Appraiser of Customs---Auction documents submitted by appellant were found bogus---Appellant was issued show-cause notice on account of possessing smuggled vehicle---Vehicle in question was confiscated through impugned order-in-original---Contention of the appellant was that appellant purchased the vehicle in question from open market and the same was duly registered by Motor Registration Authority, therefore the charge of smuggling and impugned order of confiscation of vehicle was based on misconception---Validity---Appellant was the fifth buyer of the vehicle in question and he purchased the said vehicle after due verification from the respective authority---Appellant/innocent buyer in support of his stance had produced the copies of registration book of the previous four buyers, the veracity of the said fact had not been disputed by the Customs authorities---Opinion of the Collector of Customs was that the appellant was plying the vehicle on the chasis number of some other imported vehicle, he had not provided any bill of entry or other document in support of his claim, therefore the opinion of Collector of Customs was based on assumption/presumption and rowing and fishing inquiry not permitted under the law---Officials acts were presumed to have been done in accordance with law and under the authority vested in this regard unless contrary was proved---Vehicle was registered by Motor Registration Authority under valid documents required for registration of vehicle---Customs authorities had not challenged the genuineness of the registration book, therefore it had been established that appellant was in possession of vehicle under valid registration book issued by Motor Registration Authority and the burden upon the appellant had been discharged by him---Show-cause notice issued on the basis of contravention report prepared on presumption and fishing and rowing inquiries suffered from legal infirmity---Impugned order in original was patently illegal, void ab initio which was set aside---Possession of the confiscated vehicle was restored to appellant---Appeal was allowed.

(1957) 32 ITR 89; (1967) 64 ITR 516; I.T.As. 2400/2401/KB of 1991-92; 1995 PTD (Trib.) 580; 1995 PTD (Trib.) 1152; (1982) 1381 ITR 742; 1993 PTD 206; 1997 PTD (Trib.) 2209; PLD 1992 SC 485; 2013 PTD (Trib.) 353 and 2003 PTD 2118 rel.

Sajjad Latif for Appellant.

Rana Tasleem Akhter, Deputy Director Intelligence and Munawar Ali, Investigating Officer for Respondents.

Date of hearing: 16th September, 2013.

ORDER

GHULAM AHMED MEMBER (TECHNICAL-II).---By this order, I intend to dispose off above captioned Customs Appeal filed by the appellant against Orders-in-Original No.272/2012-13 dated 23-4-2013 passed by respondent No.1.

2.Brief facts of the case as reported by the Directorate of Intelligence and Investigation-F.B.R. Regional Office, Karachi are that credible information as received in the DIT to the effect that a smuggled/non duty paid vehicle Mitsubishi Pajero Jeep, bearing Registration No.BB-5149, had been unlawfully registered with Motor Registration Authority, Karachi, without the cover of import documents and the same was plying on roads in Karachi. In pursuance of the information, a team of officers of ASO was constituted to intercept the said smuggled/non-duty paid vehicle. On 13-11-2012, the team, in presence of two witnesses, intercepted the Mitsubishi Pajero Jeep, bearing Registration No.BB-5149, near Islamia Collage, Gorumandar, Karachi. The person found in the driving seat, introduced himself as Ejaz who was asked to produce legal import documents regarding lawful possession/import of the said vehicle. In response thereto he produced running page of Registration Book No.B0306379, issued by the ETO MRA Karachi showing Registration of Mitsubishi Jeep, Reg. No.BB-5149, Chassis No.Y44-4009108, Engine No.DQ2991, Model 1996. Photo copy of Delivery Order issued by the Principal Appraiser, Custom House, Karachi, Custom Auction Officer M.I.Yard, auction shed Karachi dated 7-4-1990. In order to verify the chassis number of the seized Mitsubishi Pajero Jeep, bearing Registration No.BB-5149, the vehicle was sent to the Assistant Inspector General of the Police, Forensic Division, Karachi, vide this office letter C. No.280/DCI/Det/ ASO/20122349, dated 19-11-2012, for chemical examination of its Chassis No.Y44-4009108, in response, the Assistant Inspector General of Police, Forensic Division Sindh, Karachi, forwarded Examination Report No.AIG/FD/OR/304/2012 dated 26-11-2012, which is reproduced as under:-

Serial No.MISC/Camp/305/12

01. General:

The vehicle received from the Superintendent (Inv) FBR, Karachi. Details are:

Maker:Mitsubishi Pajero

Registration No:BB-5149

Received on:22-11-2012

Chassis Serial before chemical process:(Y 4440091 08)

2.Opinion: The Chemical Examination of vehicle has led that: The present chassis serial (Y444009108) is fake digits however the evidence of welding is present on chassis frame. In order to verify the Auction documents produced by the possession holder, the Director General approached the Deputy Collector, (Auction) M.I.Yard West Wharf, Karachi vide letter hearing C.No.280/DCI/DET/AS0/2012/2552 dated 7-12-2012 seeking confirmation as to whether the subject vehicle was auctioned by the Principal Appraiser, Custom Auction, M.I. yard auction shed Custom House Karachi or otherwise. Besides, certified copies of relevant auction documents and duty and taxes payment may also be provided. In response the Deputy Collector MCC Appraisement East Wharf Karachi vide letter No.S1/MISC/05/2012/Auction DCA-EW dated 20-12-2012, has confirmed the auction documents as bogus. The relevant part of the letter is reproduced as under:- "It seems that the delivery order is bogus as the contents thereof are not verifiable through the available past record of imports, as hence the requisite certified copies cannot be provided. Moreover, the contents of the subject Delivery Order also seem to be fake as the IGM given therein is of the year 1989 whereas the model of the vehicle is of the year 1990, which is glaring anomaly enough to make the given credentials dubious. In view of non confirmation of auction documents by the Deputy Collector UCC Appraisement; investigation conducted by the Directorate General with PRAL, and FSL report of Assistant Inspector General of Police Forensic Division, Sindh, Karachi, it is established that the Mitsubishi Pajero Jeep, Model 1996, (As per Registration Book) bearing Registration No.BB-5149, Chassis No.Y444009108 (fake digits) Engine No. D02991, Model 1995 (As per seat Belt), was smuggled into the country, without payment of duty and taxes, and the vehicle having welded chassis frame with fake chassis digits were plying on road, therefore the Mitsubishi Pajero Jeep; valuing Rs.3,406,114 involving duty and taxes Rs.6,965,503 bearing Registration No.BB-5149, bearing Chassis No.Y444009108 (Welded Chassis Book) Model 1995 (As per seat Belt), was seized under section 168 of the Customs Act, 1969 for violation of sections 2(s), 16 ibid, punishable under clauses (8) (77) & (89) of subsections (1) & (2) of section 156, of the Customs Act, 1969, Notice Under section 171 of the Customs Act, 1969, was sent to, Ejaz, (possession holder) and copy whereof, was endorsed to Muhammad Tariq (Registered Owner), and was also pasted on the Notice Board of the Directorate General Regional Office, Karachi.

3.The appellant Advocate submitted reply to the show-cause notice annexed with relevant documents through which the allegation levelled in the show-cause notice were controverted, so the detention/ seizure of the vehicle. Which fails to impress the respondent No. 1 and he order confiscation of the vehicle vide order-in-original dated 23-4-2013 while holding that the vehicle in question is smuggled on the basis of opinion farmed in paras 13 and 14 of the order-in-original, reading as:--

"I have examined the record as well as heard the both sides. It is clear that chassis number of the seized vehicle has been changed through welding as confirmed by the Forensic Lab Report as well as the Provincial Excise Department which is not denied by the respondent himself also. Chassis number is very crucial in identification of vehicles genuineness. Even if a vehicle is damaged in an accident or chassis frame twisted, the number remains there and does not erase unless it is intentionally damaged or removed to weld some other number which has been done in this case. Secondly, the documents of auction submitted by the respondents pertain to a vehicle of 1990 model whereas the seized vehicle is of 1996 model as reported by the Directorate. From the facts narrated above, it is therefore, concluded that the seized vehicle has been brought into country illegally without payment of duty and taxes leviable thereon. Its original number has been removed and another number of legally imported vehicle has been welded thereon to camouflage it and to give it a look as legally imported one. The Provincial Excise and Taxation authorities should not have registered it when they were aware of the fact that chassis number was welded one and that the welded vehicle was not legally imported one. I, therefore, order for outright confiscation of the seized vehicle under clauses (8), (77) & (89) of section 156(1) of the Customs Act, 1969, being smuggled one. There is no evidence against the respondent establishing that he had intentionally himself got the chassis number welded or purchased it knowing the factual position, therefore no personal penalty is imposed upon him as he has not violated the provisions of law as mentioned in the Show-Cause Notice. However, he is advised to check and get verified the customs documents while purchasing any foreign origin vehicle from local market in future."

4.The appellant has now challenged the above order by way of this appeal on the strength of grounds taken in the memo of appeal reading inter alia:-

(a)That the impugned order is contrary to law and facts as the same is arbitrary, capricious, mala fide, unlawful, discriminatory, confiscatory and lack of proper judicial application of mind.

(b)That the learned Collector of Customs has ignored the facts that the vehicle was purchased by the appellant through open Market and had totally ignored that charge of smuggling could not be levelled in respect of the Goods which are freely available in the open Market and are not the banned items as it was held by the apex court.

(c)That the learned Collector of Customs totally ignored that the Jeep/car neither mentioned in section 2(s) clauses (a) and (b) as such the vehicle is illegally seized by the respondent No.2 and the respondent No.2 had no jurisdiction in the matter as it was held by the superior courts in reported case for the reasons the order is liable to be set aside and it be ordered to release the vehicle.

(d)That the learned Collector of Customs totally ignored that the appellant possess the valid Registration Book issued by the Motor Registration Authority the confiscation of the vehicle is illegal as the same does not fall under clauses (8), (77) & (89) of subsections (1) & (2) of section 156, of Custom Act, 1969.

(e)That the section imposed upon the appellant are not relevant to the issue and the purported allegation of tampering is not the scheduled offence of the Customs Act, 1969 as such the vehicle is illegally confiscated and is liable to be restored by setting aside the impugned order passed by the respondent No.1.

(f)That the learned Collector of Customs failed to consider that the forensic report was obtained behind the back of the appellant which the same was challenged by the appellant in his reply and without providing any opportunity of cross-examination to the author of the report could not be relied upon as such the finding of the respondent No.1 is based on misconception and the order is liable to be set-aside and vehicle is to be restored.

(g)That the respondent No.1 failed to consider that the report of the forensic expert apparently is vague as they same is not containing the method of their test, the test report is silent about the measurement the font size of the chassis number before and after of the test and the gap in between the fonts before and after, the report is silent about erasing the original number from the chassis, and as well as the force of the strokes of the fonts are the same or having some variation as such finding of the respondent No.1 is based on misconception of facts.

(h)That the contention of the appellant regarding accident is not rebutted by the respondent No.2, even otherwise the learned custom declared that no evidence against the appellant and had not violated the provision of law as mentioned in the show-cause notice, as such detaining the vehicle is illegal as per finding of the respondent No.1 as such the possession of the vehicle is liable to be restore to the appellant.

(i)That the respondent No.2 fails to consider, the aspect of modification and fabrication in the body and replacement in body part of different model since the vehicle is old one and having model 1990 as such factor can not be ruled out in the present case.

(j)That the learned Collector of Customs fails to consider that the value of the vehicles as mentioned is Rs.34,06,114 and at presently the value of Pajeros model 1990 to 1995 in open market is in-between 650,000 to 750000 and the value is imaginary assessed by the respondent No.2 and the same is totally incorrect and having no authenticity.

(k)That the learned Collector of Customs has failed to follow the dictum and the principle laid down by the Hon'ble Supreme Court in 2006 SCMR 152, PLD 1974 Karachi (D.B) 482 and 2010 PTD (Trib.) 847 which was also relied upon by the appellant but he has deliberately failed to refer the same in the order passed by him and thus has violated the constitutional provisions of law.

(l)That the appellant seeks indulgence of this Hon`ble Court to urge further grounds at the time of hearing.

5.The Deputy Director (ASO) of respondent No. (sic) has submitted Cross Objection to the Memo of Appeal, which are reproduced as under:-

(i)That contents of Para-A of the grounds of appeal is misleading, misconceived and contrary to facts and law. The Order-in-Original No. 272/2012-13 dated 23-4-2013, passed by the learned respondent No.1, covers each and every aspects of the case. In fact the appellant while appearing before the respondent No. 1, has miserably been failed to rebut the charges levelled in the Show-Cause Notice.

(ii)That contents of Para-B of the grounds of appeal are not denied to the extent of ownership of vehicle Mitsubishi Pajero Jeep bearing Regd. No. BB-5149. However, the non-duty paid smuggled vehicle Mitsubishi Pajero Jeep having tampered Chassis number was registered fraudulently on the basis of bogus auction documents, which has been confiscated outrightly for violation of the provisions of sections 2(s) and 16, punishable under clauses (8), (77) & (89) of Section 156 (1) & (2) of the Customs Act, 1969, in accordance with law.

(iii)That contents of Para-C of the grounds of appeal are misleading, misconceived and contrary to facts and law. It is evident on record that the vehicle Mitsubishi Pajero Jeep having tampered chassis number was registered with Motor Registration Authority on the basis of fake and bogus auction documents. The fraudulent registration of non-duty paid/ smuggled Mitsubishi Pajero Jeep, having tampered chassis number on the basis of bogus auction documents can neither regularize the vehicle nor can absolve it from consequential penal action. In this regard, reliance is placed on the following judgments of the Honourable Supreme Court of Pakistan and this Honourable Court:-

(a)The Honorable Supreme Court of Pakistan, in an identical case dismissed the Civil Petition No. 657 of 2007 vide Order dated 24-9-2008, reported as 2009 PTD 77 (Ch. Maqbool Ahmed v. Custom, Federal Excise and Sales Tax Appellate Tribunal and 3 others).

As far as the matter of jurisdiction is concerned, it is submitted that by virtue of S.R.O. 486(I)/2007 dated 13-6-2007, the officers of Directorate General Intelligence and Investigation-FER, have been authorized and are empowered to seize any class of goods liable for confiscation.

(iv)That contents of Para-D of the grounds of appeal are misleading, misconceived and twisting of facts by the petitioner. It is once again reiterated that the vehicle Mitsubishi Pajero Jeep bearing Regd. No. BB-5149, having tampered chassis was smuggled into the country and no duty and taxes were paid. The vehicle was unlawfully registered with Motor Registration Authority, Karachi, on the basis of bogus auction document which has been confiscated outrightly in accordance with law.

(v)That contents of Para-E of the grounds of appeal are not maintainable, hence, denied. The comments have already been offered in the preceding paras.

(vi)That contents of Para-F of the grounds of appeal are misconception and twisting of facts by the appellant. It is submitted that subsequent to the interception, the vehicle Mitsubishi Pajero Jeep was sent to the Assistant Inspector General of Police Forensic Division, Karachi, for chemical examination of its Chassis No. Y44-4009108. In response, the Assistant Inspector General of Police Forensic Division, Karachi, forwarded Chemical Examination Report No.AIG/FD/OR/304/2012 dated 26-11-2012, confirming therein that the chassis series is fake and evidence of welding is present. Show-Cause Notice No. ADII/COLL/DIT/02/2012-13 dated 10-1-2013, was issued accordingly. The appellant submitted written reply to the Show-Cause Notice wherein at paras 3 and 8 has himself claimed/ admitted that the vehicle in question was having welded chassis series. Such state of affairs is ample to conclude that the issue of tampering of chassis series of the impugned vehicle was admitted and the appellant has never raised any objection on the examination report obtained by the department from Forensic Division, Sindh Karachi.

(vii)That contents of Para-G of the grounds of appeal are not maintainable. The comments have already been offered at para F above, therefore, no further comments.

(viii) That contents of Para-H of the grounds of appeal are twisting of facts by the appellant. The purported affidavit was filed before the Motor Registration Authority for the issuance of duplicate number plate instead of incorporating the tampering/welding of chassis series (Page 93 of the Memo. of Appeal). The appellant has claimed that the vehicle in question met an accident during the year 2003, which caused welding of chassis series of the impugned vehicle. However, no details of such accident were ever provided neither to the Motor Registration Authority nor the office of respondent No. 2. Rather, TO Form (Page 91 of the Memo. of Appeal) clearly shows the endorsement of the Physical Checking Staff of the Motor Registration Authority that "NOT RESPONSIBLE REGARDING TAMPERING OF CHASSIS AND ENGINE NUMBER OF THE MOTOR VEHICLE". Likewise, the registration book issued by Motor Registration Authority (Annex-A/5 of the Memo. of Appeal), Civic Center, Karachi, did not show that the chassis series of the vehicle in question was/is tampered/ welded. In fact the appellant has engineered a concocted story to give legal cover to the non-duty paid vehicle having tampered chassis series, which has been confiscated outrightly by the respondent No.1, in accordance with law.

(ix)That contents of Para-J of the grounds of appeal are not maintainable. The value of the vehicle was obtained from the Principal Appraiser, MCC (Appraisement) Group-VI, Custom House, Karachi (Annex-J).

(x)That contents of Para-K of the grounds of appeal are not denied to the principle laid down by the Honourable Supreme Court, High Court and the Appellate Tribunal. However, the rulings relied upon by the appellant are not relevant to the instant case.

6.The appellant Advocate on the date of hearing also submitted written synopsis on the case through which he stated inter alia.

(a)In order to pose the legal position in the case it is necessary to go through the charges levelled against the appellant i.e. section 2(s) and section 16 of the Customs Acts, 1969.

Section 2 (s):

"Smuggle" means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force. {or en route pilferage of transit goods} or evading payment of customs duties or tax leviable thereon:-

[(i) .. .

(ii) .. .

Section 16.---Power to prohibit or restrict importation and exportation of goods.---The Federal Government may from time to time, by notification in the official gazette, prohibit or restrict the bringing into or taking out of Pakistan of any goods of specified description by air, sea or land.

(b)The honorable apex court has already held in there judgments that the cars are not notified item under the section 2(s) and seizure of the car by the under the clauses of section 2(s) of the Customs Acts is beyond the scope of section 2(s) and such seizure is illegal.

PLD 1975 Karachi 482.---Cars neither mentioned in S(s), Cl (a) or (b) nor in Notification ... Seizure of such smuggled held, illegal. ...

PLD 1978 Karachi 774

PLD 1979 (sic) 68.

(c)That since the appellant is the fifth registered owner of the vehicle and as per original file the vehicle was purchased through auction by one Miran Khan in the year 1990, the appellant handed over all the relevant documents to the respondent No.2. However the following position required consideration that the respondent No.2 in the last two lines of para 2 and the opining Para 5 of show-cause notice are very important and are self explanatory.

Para 2. of Show cause Notice.--- however, despite lapse of considerable period, the possession holder neither replied nor produced any relevant import documents.

Para 5.---In order to verify the Auction documents produce by the possession holder .

The document produced by the appellant clearly reflects that the vehicle was purchased through auction from the customs as such the demand of the import document was illogical/uncalled/ unwarranted and the charges as levelled is baseless/unfounded.

(d)That the respondent No.2 relied upon the report of Deputy Collector MCC Appraisement East Wharf that the auction documents are bogus, as the same are based on assumption and having no cogent reasons except that the customs authorities has no past record available with them.

(e)The respondent No.1 totally ignored that the respondent No.2 fails to verify the position from ADNAN JUNAID & Co Government Auctioners. And also fails to verify the signature of the than Principal Appraiser Custom Auction Officer, viz-a-viz the Sale Voucher bearing No. 84096 and Tax Payment Receipts paid in NPB on 7-4-1990, which was a very important piece of evidence which the respondent fails to collect the same. This Honourable Court under Article 84 of the Qanun-e-Shahadat could himself examine such facts since the material placed by the respondent No.2 could not be believe to be true unless the same be produce on oath.

(f)That the learned respondent No.1 failed to consider that the customs had no past record of last 23 years i.e. 1990 as per Chapter XVI-A section 155G(2) of the Customs Act. As such the customs has no facility beyond the period of 5 years as the PRAL database came into existence on 17-6-2003 under the Finance Act (1 of 2003) and the purported report bearing No. SI/MISC/ 05/2012/Auction-DCA-EW Dated 20-12-2012 as baseless/ maneuvered and amount to play fraud upon the authority and has been obtained in order to cover their weaknesses in the case.

(g)That the learned Collectorate of Customs (ADJUDICATION-I) for its Order-in-Original No. 272/2012/13 rightly hold that the appellant has not violated the provision of law as mentioned in the show cause notice. The relevant portion is reproduced here as under:-

"There is no evidence against the respondent establishing that he had intentionally himself got the chassis number welded or purchased it knowing the factual position, there is no personal penalty is imposed upon him as he has not violated the provision of law as mentioned in the show-cause notice. However, he is advise to check and get verified the customs documents while purchasing any foreign origin vehicle from local market in future."

(h)It is further to pointed out that the learned respondent No.1 wrongly erred and relied upon the report of Provincial Excise Department as stated in Para 13 of the original order, which the same having no footing at all as there in no such report from the provincial Excise Department in the record the respondent No.1 as such forming of opinion make it baseless and nullity in the eye of law as the requirement of Articles 72 and 78 of the Qanun-e-Shahadat has not been fulfilled. That the apex court already held in its various judgments that Every document given in evidence unless its proof is dispensed must be proved therefore the report of the Forensic depart is not proved as required by the Article 78 of the Qanun-e-Shahadat is inadmissible in evidence and forming opinion over the same is illegal. As such it is necessary to go through the relevant Article of the Qanun-e-Shahadat Order, 1984;

Article: 72:- Proof of contents of documents.---The contents of documents be proved by primary evidence or by secondary evidence.

Article 78:- Proof of signature and handwriting of person alleged to have signed or written document produced.---If a document is alleged to be signed or to have been written wholly or in part by an person, the signature or the handwriting of so much of the document as is alleged to be in that persons hand writing must be proved to be in his writing.

(i)That vide purported letter bearing No. 280/DCl/DET/ASO/ 2012/2349 dated 19-11-2012 WHERE IN IT WAS REQUESTED THAT the chassis number chemically examine covering following aspects:-

(a)Whether chassis No. is self punched.

(b)Whether chassis placement and welding is done or not.

(c)Whether the formation of digit is normal or otherwise.

(d)Any other expert opinion.

(j)That purported Examination report was prepared and signed by one Sadiq Ali Pathan and Shahid Hassan Khan and is silent about their designation and qualification which makes it highly doubtful about its authenticity, even the requisite aspects as required by the respondent No.1 is completely missing, as such forming opinion, on the basis of such report is nullity in the eye of law and the same has been obtained behind the back of the appellant it appears to be a vague report, and further the author of the report has not produced through the author in order to deprive the appellant to cross examine upon such purported report as such the same has no value under the Qanun-e-Shahadat Order and it can not be relied upon. Relied upon 2006 PTD (Trib.) 1466

(k)That the learned collector erred in holding that the vehicle is smuggled at the basis of the Forensic report which otherwise is inadmissible in evidence. It is worth mentioned to pointed out the last 5 lines from the bottom of Para 13 of the original order the same is reproduced here as under:-

Its original number has been removed and another number of legally imported vehicle has been welded thereon to camouflage it and to give it a look as legally imported one the report is silent about such presumption, and secondly whether the customs authority has collected any evidence of legally imported vehicle whose number has been welded as to whether when it was imported and when it was registered with the excise department motor vehicle wing.

(l)That the only basis of confiscation of the seized vehicle is as bear reading of the order is that the chassis number is tampered and such allegation which making cause of confiscation is out of the domain of the customs Act as the allegation of tampering is not the scheduled offence of the customs Law and such allegation is out of the ambit of the Customs law unless it is specifically provided, as such the confiscation of the vehicle by the custom authorities after 23 years from its auction under the allegation of tampering is totally illegal and the vehicale is liable to be restored to the appellant;

(m)That the respondent No.2 played mockery upon this court by obtaining a bogus value certificate for the vehicle i.e. Rs.3468195 as annexure in para wise comments Annexure-J without assessing that the value in the year 1996 of the vehicle and the prevailing rate of Japanese Yen in the year 1996 which completed make it bogus, and such need to be proved under Article of 111, and Article 112 the Qanun-e-Shahadat Order, 1984, and is also placed on record in violation of the Articles 72 and 78 of the Qanun-e-Shahadat and as such is nullity in the eye of law as the requirement of Articles 72 and 78 of the Qanun-e-Shahadat is not fulfilled.

(n)That even if it is believed for the sake of arguments that the vehicle make is 1996 even then the price of the vehicle was in-between 16,00,000 to 16,50,000 in the open market of the fresh import vehicle. However at presently the value of the vehicle in the open market is maximum 800000 which this facts could it self be securitized at this stage by this Honourable Court under the law.

7.Rival parties heard and case record perused. The whole controversy has started with the assumption of the respondent No.2 that seat belt of the subject vehicle carries the date of manufacture pertaining to the year 1990. The presumption or assumption could be challenged or itself is subject to question as the seat belt can be replaced or changed. The import data or record which is the responsibility of the concerned Customs House to keep, who doesn't have such a record after a lapse of more than 23 years, equally not plausible to call it from the owner of the vehicle which has undergone more than 5 or 6 transactions during this time and has changed hands to make it available. Then the importer/Trader/manufactures and Customs licensee are supposed to keep record for a period of 5 (Five years). Thus under the circumstances, the logical conclusion is to rely upon the Motor Registration Authority. Hence basing the whole argument upon the assumption of the date of manufacture on a seat belt and in absence of the import record is not plausible argument. There exist possibility that no record to the years 1990 and 1996 are available with the Custom House and this stood validated from the letter dated 20-12-2012 stating with clarity that no record pertaining to the impugned vehicle is available with them in the light of computer sheet dated 5-12-2012 retrieved from the data base maintained by the PRAL in terms of section 155G(2) of Chapter XIV-A of the Customs Act, 1969 inserted through Finance Act, (1 of 2003). The period had long since expired by the time the vehicle was seized. In such a situation, the non production of documents relating to import of the vehicle is of no legal effect and could not allow the appropriate officer to draw any adverse inference.

8.As regard the charge of smuggling levelled against the appellant without taking into consideration of the word smuggled defined in section 2(s) of the Customs Act, 1969. It is appropriate to reproduce the provision of section 2(s) for better understanding the word smuggle and for specified area for levelling the charge of smuggling:-

2(s) "Smuggle" means to bring into or take out of Pakistan in breech of any prohibition or restriction for the time being in force, or evading payment of customs duties or taxes leviable thereon,

(i)Gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances; or

(ii)Manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the official Gazette, which , in each case, exceed [one hundred and] [fifty thousand rupees] in value or

(iii)Any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs station and includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly.]

That after examining the section 2(s), it is observed that the definition of 2(s) can be applied only if both of two forms are fulfilled. Each of this form have two "limbs" and the form applied if either of its limbs is applicable, these position are narrated here-in-below:

(a)Form (A): The impugned goods should be brought into or taken out of Pakistan either (i) in breech of any prohibition or restriction for the time being in force, or

(ii)by evading payment of customs duty and other taxes leviable thereon ;and

(b)Form (B): The impugned goods should be either those specifically listed in the definition, i.e. gold bullion, platinum, radium, etc or be notified by the Federal Government in the official Gazette, or (ii) be brought into or taken out of Pakistan by a route other than one declared under sections 9 or 10 or from a place other than a customs station.

I am of the view that unless both forms (A) & (B) applied the issue does not fall within the definition of "smuggle" and there can be therefore neither any smuggling of the goods nor can they be held to be "smuggled goods". For the instant case it is appropriate to consider Form (B) in detail. As far as first limb is concern none of the goods specifically mentioned in the definition are relevant present case, therefore for Form (B) to apply, it must be shown that the vehicle been notified by the Federal government for the purpose of section 2(s) (the first limb), or (the second limb) the goods in question were brought into Pakistan via route other than one declared in section 9 or 10 of the Customs Act, 1969 or from a place other than a Customs-Station each of the two limbs of course applied to its own footing i.e., the applicability of one is not dependent on the existence, continuance or occurrence of the other. Obviously, if there was no notification in relation to the motor vehicle, then the first limb did not apply and it was only the second limb of condition (B) that could apply. The importance of this point can be determined by looking at it in reverse. If there is no notification in field and a motor vehicle is brought into Pakistan by route declared under sections 9 and 10 and through a customs-station i.e., the second limb also does not apply) then form "B" would not apply in such a situation, even though there may be an evasion of customs duty and other taxes or breech of any restriction or prohibition (i.e., form (A) applies). The matter would not come within the ambit of 2(s). In other words, there would be no smuggling of the motor vehicle, which could not therefore be regarded as "smuggled vehicle".

10.It is not merely an academic exercise or a consideration of section 2(s) theoretical, but a matter of great vital importance. The notification presently in field with regards to section 2(s) is S.R.O. 566(I)/2005 dated 6-6-2005. This notification includes motor vehicle. It replaced and superceded S.R.O. 491(I)/85 dated 23-5-1985. Motor vehicle was not originally listed in 1985 notification, but were added only on 14-9-1998 by mean of an amending notification. The 1985 notification itself replaces and superceded S.R.O. 1426(I)/1973 dated 5-10-1973 in which, likewise, motor vehicle were not listed, meaning thereby that motor vehicle were notified by the first time on 14-9-1998 for the purpose of section 2(s). It has to keep in mind that the effect of this notification applies to those vehicles as were brought into country on or after 14-9-1998 and it did not apply to the vehicle brought in before that date. Thus the mere seizure of the vehicle after that date did not (and could not) of itself make 2(s) applicable. One consequence of this, that prior to 14-9-1998, the only in which vehicle could be regarded as smuggled within the meaning of section 2(s) was if the second limb of Form B applied. i.e. if it was brought into Pakistan by a route other than declared under section 9 or 10 or from a place other than a Customs Station. It was therefore only in this situation the charge under section 2(s) can be levelled prior to 14-9-1998 and not after that. This is important because the model of vehicle as per registration book is 1990 and as per the version of respondent No. 2 determined on the basis of seat belt, despite of no importance as seat belts are replaceable was of several years prior to 14-9-1998, which prima facie made it more than likely perhaps quite probably that it was brought into country before that date. The vehicle was seized in 2012. While taking into consideration Notification S.R.O. 566(I)/2005 dated 6-6-2005, under which the said vehicle does not fall being model of 1990 or as alleged 1996. This opinion has been drived from the unreported judgment authored by Honourable Justice Munib Akhter of High Court of Sindh in Special Custom References Nos. 245 of 2008, 253 of 2008 and 263 of 2010.

11.I also noticed that the appellant is the fifth buyer of the instant vehicle and he purchased the said vehicle after due verification from the respective authority i.e. MRA and as such is an innocent buyer and in support of his stance produced the copies of registration book of the previous four buyers, the veracity of the said fact has not been disputed by either of the respondent. Instead the respondents are of the opinion that the appellant is plying the vehicle on the chassis number of the vehicle imported in the year 1996. No bill of entry or another document has been provided by the respondent in support of their contention, rendering the same as based on assumption/presumption and rowing and fishing, inquiry not permitted under law as held in reported judgments (1957) 32 ITR 89 (1967) 64 ITR 516, I.TAs. 2400/2401/KB/91-92, (1995) PTD (Trib.) 580, 1995 PTD (Trib.) 1152, (1982) 1381 ITR 742, 1993 PTD 206,1997 PTD (Trib.) 2209 and PLD 1992 Supreme Court 485 and 2013 PTD (Trib.) 353. It is settled law that all official acts are presumed to had been done in accordance with law and under authority vested in this regard unless contrary is proved. Applying this principle, it is presumed that the vehicle was registered by MRA under valid documents required for registration of the vehicle, the respondent did not challenged the genuineness of the registration book and thus prima facie, it is established that the appellant was in possession of vehicle under valid registration book issued by the MRA under the law and as such, the burden cast upon the appellant under section 187 of the Act was discharged by him. In a similar case reported as 2003 PTD 2118, Collector of Customs, Sales Tax and Central Excise Quetta v. Naimatullah the Customs Staff intercepted a Toyota Land Crusier Jeep on the ground that the same was not duty paid vehicle. The adjudication officer confiscated the vehicle as, according to him the owner failed to discharge burden of proof as provided under section 187 of the Act and prove that the vehicle was lawfully imported into the country and all payable taxes were paid. The appeal before the Appellate Tribunal was accepted, the confiscation order set aside and, the customs authority were directed to release the vehicle to the respondent. The Custom department then filed an appeal before the learned High Court which was dismissed with the following observation:--

"It is not the case of the appellant that the registration book under which the vehicle was registered was not issued by the MRA, as such; was a fake book, Prima facie. It is established that the respondent was in possession of the vehicle under the valid permit issued by the MRA, as such the burden cast upon the respondent under section 187 of the Act was discharged by him. On the other hand the customs authorities failed to discharge the ultimate or legal burden cast upon it and it was doubtful as to whether the vehicle in question was registered on fake documents as no such documents was produced nor the concerned authority initiated regarding fake registration of the vehicle against the original order or the concerned officials of the motor registration authorities, which, if committed was not only an offence under the ordinary law but an offence punishable under Customs Act. Thus it was doubtful under the given facts and circumstances of the present case as to whether the vehicle in question was got registered under the Motor Vehicle Ordinance through valid documents or otherwise, as such the respondent was entitled to the benefit of doubt on general principle and rightly extended by the learned Appellate Tribunal to him.

For the foregoing reason, we find no merit in the instant appeal within the meaning of section 196 of the Customs Act, 1969 and same is accordingly dismissed in limine."

12.In view of the given circumstances of the case and held in para supra, I am of the considered opinion that the show-cause notice was issued on the basis of contravention report prepared on presumptions and fishing and rowing inquiries, in the absence of valid evidence and in excess of power and jurisdiction besides on forced construction of law, resultant, the show-cause notice suffered from legal infirmity so the Order-in-Original, rendering this patently illegal, void and ab initio. I therefore, vacate the show-cause notice and set aside the order passed by respondent No.1 and allow the appeal with the direction to respondent No. 2 to restore the vehicle to the appellant, who is bona fide owner of the vehicle. Appeal is allowed as no order to cost.

13.Order passed accordingly.

JJK/188/Tax(Trib.)Order accordingly.