MUHAMMAD SARWAR VS COLLECTOR OF APPEAL CUSTOMS
2014 P T D (Trib.) 1518
[Customs Appellate Tribunal, Peshawar]
Before Hafiz Ahsan Ahmad Khokhar, Chairman, Gulab Shah Afridi, Mian Muhammad Hanif Tahir, Mohammad Arif Moton, Members Judicial, Javed Kazi and Humayun Khan Sikandar, Members Technical
MUHAMMAD SARWAR and another
Versus
COLLECTOR OF APPEAL CUSTOMS and 3 others
Customs No.217/PB of 2011, decided on 02/12/2013.
Customs Act (IV of 1969)---
----Ss. 2(s), 16, 17 & 168---Re-stamped chassis number of vehicle---Confiscation/seizure of vehicle on the charge of being smuggled/non duty paid---Scope---Vehicle of the appellant was seized on the suspicion of being smuggled---Detained vehicle was referred to the Forensic Science Laboratory for chemical examination---Customs officials, on the report of chemical examiner, found that chassis number of seized vehicle was re-stamped, therefore vehicle of the appellant was ordered to be confiscated---Appeal filed by the appellant against the impugned order in original was dismissed by Collector Customs (Appeals)---Contention of the appellant was that mere re-stamping the chassis number of vehicle was not sufficient to consider the vehicle to be tampered one and smuggled, therefore the confiscation of the vehicle on such ground was not justified---Validity---Vehicle was seized far away from the border area---Appellant had the registration book issued by motor registering authority, whereby registration number was allotted to vehicle in question---During investigation no other vehicle was found registered on the same chassis number---Chemical examiner had opined that, "chassis number was re-stamped one, the original chassis number filled with weld material and not decipherable"---Chemical examiner had neither given opinion that another new number was found in the chassis number nor the report showed that chassis sheet was replaced one---Statement of the laboratory expert was not commensurate with the contention of the respondent department/ customs officials, because when the laboratory expert himself stated that the present chassis number was re-stamped one, then how the vehicle in question could be said to be tampered one---Respondent Customs department had failed to show any evidence to the effect that any other chassis number was embossed on the chassis plate/place of vehicle in question---Impugned orders were set aside---Appeal was allowed.
PTCL 2007 CL 673 and 2006 PTD (Trib.) 1553 ref.
Attiq-ur-Rehman for Appellants.
Naseer Khan, Superintendent Customs for Respondents.
Date of hearing: 24th September, 2013.
JUDGMENT
GULAB SHAH AFRIDI, MEMBER (JUDICIAL).---This appeal filed by Muhammad Sarwar and others, (appellants here-in) is against the Order-in-Appeal No.107 of 2011 dated 30-5-2011 passed by the Collector Customs (Appeals), Peshawar, whereby he dismissed appeal of the appellants.
2.Brief facts of the case as reported to the Superintendent (Customs Preventive Circle, D.I. Khan) are that on specific information non duty paid, Toyota Crown Super Saloon bearing Registration No.LWN-5449, was intercepted on Darband Road, D.I. Khan on 26-1-2010. On demand, the occupants of the vehicle produced a Registration Book showing description of the vehicle as "Toyota Corolla Motor" while physically the vehicle was a Toyota Crown Super Saloon. Since the Chassis number was also found suspicious, therefore, the vehicle was detained under section 17 of the Customs Act, 1969 for necessary verifications.
The detained vehicle was accordingly referred to the Forensic Science Laboratory Peshawar for chemical examination of its Chassis number. The FSL authority subsequently provided its export opinion vide Lab Report No. 1635 dated 28-1-2010 which is reproduced below:--
| Nos Before Chemical Treatment | Nos after Chemical Treatment |
| Chassis No. MS65-022990 | Chassis No. Re-stamped one. |
Opinion
Chemical examination of the chassis number of the vehicle in question revealed that:-
The original chassis number filled with weld material and not decipherable. The present chassis number is out of place and re-stamped one.
In view of the above results of the investigation process the Toyota Crown Super Saloon bearing fake Registration No.LWN - 5449, Chassis No.MS65-022990 (Tampered/Re-stamped) Engine No.0641269 of Model 1994 bearing a smuggled and non duty paid vehicle was seized under section 168 of the Customs Act, 1969 for having been brought into the country through an unauthorized route in violation of sections 2(s) and 16 of the Act ibid read with section 3(1) of the Imports and Exports (Control) Act, 1950.
3.Subsequently, after completion of the requisite formalities, the matter was placed before the Additional Collector-II, Customs Peshawar, who Vide Order-in-Original No 71 of 2010 dated 25-3-2011 ordered outright confiscation of the vehicle.
4.Aggrieved of the impugned Order-in-Original No. 71 of 2010 dated 25-3-2010, the appellants filed appeal before the Collector Customs (Appeals), Peshawar, who vide Order-in-Appeal No. 107 of 2011 dated 30-5-2011, while he dismissed the appeal of the appellants. Hence the instant appeal on the following grounds:--
(1)That the impugned Order-in-Original and Order-in-Appeal are against the law, facts and material available on record.
(2)That the appellant on each and every date fixed by the respondent No. 1, submitted application in which the appellant request the respondent No. 1, to direct the seizing agency to file Para-wise comments because the appellant wanted to submit rejoinder.
(3)That on the last date of hearing the appellant counsel was admittedly present before the Collector(Appeals) Peshawar. The counsel for the appellant on the date fixed once again requested the respondent No. 1, to direct the seizing agency to submit the Para wise comments and sought adjournment for submitting rejoinder and properly argued the case. But the respondent No. 1, despite the appearance of the counsel for appellant dismissed the appeal in default of non prosecution which is against the law and procedure.
(4)That on the date fixed the departmental representative was admittedly neither present nor he submitted Para wise comments. The respondent No. 1, instead of taking action against the seizing agency has dismissed the appeal of appellant in default of non prosecution. Therefore, the order in appeal is not sustainable and is liable to be set aside.
(5)That the department was not interested to pursue the case however, the respondent No. 1 time and again intimated the department in regard with the date of hearing and also directed to submit para wise comments but the departmental representative deliberately neither the forum nor submitted the pare wise comments.
(6)That the subject vehicle was detained in terms of section 17 of the Customs Act, 1969 illegally as no approval of an officer not below the rank of an Assistant Collector of Customs was obtained.
(7)That section 17 of the Customs Act, 1969 can be made applicable where any goods are imported into, or attempted to be exported out of Pakistan in violation of the provisions of section 15 of or of a notification issued under section 16 of the Customs Act, 1969.
(8)That section 15 of the Customs Act, 1969 is not applicable in this case because the goods seized in this case are not the goods specified under section 15 of the Customs Act, 1969.
(9)That section 16 of the Customs Act, 1969 is not applicable in this case because it is applicable where the Federal Government by notification in the Official Gazette, has prohibited or restricted the bringing into or taking out of Pakistan any goods of specified description by air, sea or land.
(10)That the Customs Anti Smuggling Unit D. I. Khan (hereinafter called prosecution) has failed to point out any notification according to which the import of the vehicle has been prohibited.
(11)That conversion of detention memo. into seizure memo was also illegal because.
(i)the recovery memo. was prepared in absence of the owner of the goods as well as owner of the vehicle from whose possession the same was detained.
(ii)the provision of section 168 of the Customs Act, 1969 were violated.
(iii)Section 168 of the Customs Act, 1969 empowers the appropriate officer of Customs to seize goods liable to confiscation.
(iv)The word seize used in section 168 of the Customs Act, 1969 has been defined under clause (rr) of section 2 of the Customs Act, 1969 as under:--
"Seize means to take into custody, physically or otherwise, goods in respect of which some offence has been committed or is believed to have been committed under this Act or the ruler, and all cognate words and expressions shall be construed accordingly".
(v)the vehicle had already been taken into physical custody vide detention memo dated 26-1-2010 though the prosecution was not supposed to take it into physically custody at the time of detention.
(vi)the word "detain" has also been defined under clause (kk) of section 2 of the Customs Act, 1969 which inter alia means:
"Detain" in relation to goods, means to prohibit the disposal or use of the goods, pending the finalization of any proceedings under this Act, in relation to the goods or the owner thereof".
(12)That due to violation of the provisions of section 17 of the Customs Act, 1969 the impugned order-in-original in question is liable to be set aside.
(13)That the recovery memo. prepared in absence of the owner of the goods and without getting the signatures thereof while taking the physical custody of the goods is itself illegal and the case in question is liable to be vitiated on the simple ground.
(14)That the chemical treatment of the vehicle was carried out in absence of the owner of the vehicle and the principles of natural justice were violated.
(15)That the vehicle requires 2nd lab test so that the causes of natural justice could be fulfilled.
(16)That the vehicle seized/confiscated in this case is of 1975 Model about 35 years old which was imported into the country vide bill of entry for consumption and invoice dated 11-8-1978.
(17)That the seizing officer never bothered to approach the Excise and Taxation officer where the vehicle was registered and registration No.LWN-5449 was allotted.
(18)That the vehicle was not got tested/examined from the Toyota authorized dealer and mere obtaining of own will result from the FSL Peshawar create suspicion.
(19)That the vehicle in question was partially modified by changing certain parts thereof as the parts fixed thereon had deteriorated badly due to passage of time and to this effect expert report was never sought from the Toyota authorized dealer which is mandatory in this case.
(20)That, the impugned order in appeal has been passed in absence of any concrete reason because;
(a)the Collector (Appeals) on 29-4-2011 asked the Deputy Collector (Legal) that in the said appeal the departmental representative is not interested in defense of the case nor submitted rejoinder.
(b)The appellant counsel requested the Collector (Appeals) vide two application dated 2-2-2001 and 24-3-2011 for provision of comments by the seizing agency, but the same never provided except to decide the case against the appellant.
(21)That sufficient cause has already been described in the preceding Pares and therefore the circumstances of the case warranted its examination of vehicle from the authorized Toyota dealers.
(22)That the only examination report obtained at the back of the appellant is unwarranted and requires 2nd expert opinion from the FSL Lahore.
(23)That the impugned order-in-original has been passed in absence of the owner of the vehicle because;
(a)recovery memo was never received by him.
(b)show-cause notice issued in this case never received by him. That is why, the case was decided ex-parte.
(c)The case was decided after giving only one date of hearing fixed on 20-3-2010.
(24)That the impugned order-in-original was never received by him nor any notice within the meaning of section 201 of the Customs Act, 1969 was ever received by him.
(25)That show-cause notice in this case was issued on 15-3-2010 whereas the case was decided on 25-3-2010 without providing ample opportunity of hearing and without following the dictum of law as envisaged under Section 25 of the Customs Act, 1969.
(26)That the Collector Appeals without providing a chance for 2nd Laboratory Test which requests were acceded to in many cases by the adjudicating authorities as well as the appellate authorities.
(27)Under the circumstances as explained above, the appeal filed before the Collector of Customs Appeals was not barred by limitation.
5.In rebuttal the respondents filed their Parawise comments which is as under:--
(1)Not agreed Both the orders of adjudicating/appellate authority are based on law and facts of the case.
(2)Not agreed. The order-in-original is speaking order and everything has been correct and considered therein.
(3)Same as explained against Para 2 above.
(4)No comments.
(5)No comments.
(6)Not agreed. The vehicle was detained under section 17 of the Customs Act, 1969 after getting proper approval from the competent authority.
(7)Not agreed. The driver/owner of the vehicle failed to produce any Legal/Customs documents on the spot, therefore, the vehicle was detained under section 17 of the Customs Act, 1969 for want of legal documents.
(8)Irrelevant.
(9)Not agreed. Original Chassis number has been removed and another number pertaining to some other legal vehicle has been re-fitted on the Chassis plate to hoodwink the law by making the smuggled vehicle appear to be legitimate one.
(10)Not agreed. Only the documents have been used and a piece bearing chassis numbers has been re-fitted in an attempt to make the smuggled vehicle was imported one.
(11)(i-vi) Not agreed. The detention memo was converted into seizure after getting approval of the competent authority. The seizure was made under section 168 of the Customs Act, 1969. The recovery memo. has been sent to the owners through registered post.
(12)Same as explained against Para '6' above.
(13)Not agreed. The recovery memo. was dispatched to the owners to be registered post.
(14)Not agreed. "As a general rule of the Honorable Apex Court of Pakistan has upheld the opinion of FSL is valid and relevant in cases where the impugned vehicle is found to have tampered chassis plate/number. The Superior Courts have also declared (in various judgments) that the FSL examination conducted on the back of vehicle owners is also admissible "as an expert's opinion. It has been further held that in cases where the chassis number is found to be tampered replaced, cut or welded (meaning thereby that it was not genuine) all other evidence of lawful import i.e. Bill of Entry and shipping documents become in admissible simply being irrelevant".
(15)No comments.
(16)Not agreed. "As a general rule of the Honorable Apex Court of Pakistan has upheld the opinion of FSL is valid and relevant in cases where the impugned vehicle is found to have tampered chassis plate/number. The Superior Courts have also declared (in various judgments) that the FSL examination conducted on the back of vehicle owners is also admissible "as an expert's opinion. It has been further held that in cases where the chassis number is found to be tampered replaced, cut or welded (meaning thereby that it was not genuine) all other evidence of lawful import i.e. Bill of Entry and shipping documents become in admissible simply being irrelevant".
(17)Not agreed. "As a general rule of the Honorable Apex Court of Pakistan has upheld the opinion of FSL is valid and relevant in cases where the impugned vehicle is found to have tampered chassis plate/number. The Superior Courts have also declared (in various judgments) that the FSL examination conducted on the back of vehicle owners is also admissible "as an expert's opinion. It has been further held that in cases where the chassis number is found to be tampered replaced, cut or welded (meaning thereby that it was not genuine) all other evidence of lawful import i.e. Bill of Entry and shipping documents become in admissible simply being irrelevant".
(18)No comments.
(19)Not agreed. The Lab report is a sufficient proof that Chassis was welded and re-fitted which indicates that a smuggled vehicle was playing in the grab of legally imported vehicle.
(20)(a & b) Not agreed. The order in appeal is speaking order and everything has been correct and considered therein.
(21)Not agreed. The expert opinion obtained is not one sided. It is an opinion of a shopkeeper of open market but of a responsible officer of Government owned FSL Peshawar.
(22)Not agreed. "As a general rule of the Honorable Apex Court of Pakistan has uphold the opinion of FSL is valid and relevant in cases where the impugned vehicle is found to have tampered chassis plate/number. The superior Courts have also declared (in various judgments) that the FSl examination conducted on the back of vehicle owners is also admissible".
(23)Not agreed. Because the conclusion drawn by the Collector (Appeals), was based on cogent facts as elucidated in aforesaid OIA. Moreover, the owner was given full opportunity to defend his case, and the case was properly decided.
(24)Not agreed. The orders as well as notices served upon the owners properly.
(25)Not agreed. The show-cause notice issued vide C. No. Cus/ Add'C-II/61/2010/2291 dated 15-1-2010, therefore, the adjudicating authority complied with section 215 of the Customs Act, 1969.
(26)Not agreed. There is strong evidence of FSL report which clearly shows that the original chassis number filled with weld material are not decipherable. The present chassis is out of place and re-stamped one.
(27)Not agreed. The appeal was barred by time limitation by more than five months.
6.During the course of arguments, learned counsel for the appellant contended that in fact the vehicle's chassis is of 1975 model and the body of which was much rusty therefore, the old body of the vehicle was detached and another body purchased in the open market was affixed on its chassis. He also contended that the import documents (annex-L) was produced by the appellant during proceedings before the Seizing Agency as well as before the Adjudicating Officer which was not questioned but the same was confiscated on the basis of FSL report which also not reflect any tampering, mere re-stamp is not sufficient to consider the vehicle to be tampered one and brought into the country through unauthorized route. He also contended that during the chemical treatment the Examiner had not pointed out that any other new number found beneath the chassis number, neither he reported that the chassis plate is welded from four corners being replaced one support of his arguments, the learned counsel relied on the reported judgment PTCL 2007 CL 673, 2006 PTD (Trib.) 1553, judgment in Customs Reference No.24/2010 dated 18-9-2012, case titled Collector Customs v. Khwazit Khan of the honourable Peshawar High Court, Peshawar and also judgment of this Tribunal in-Appeal No.45/PB of 2009 of the similar facts.
7.On the other hand Mr. Naseer Khan, Superintendent/ Departmental Representative opposed the contention of the learned counsel for the appellant and stated that according to the FSL report, the vehicle is tampered one which is brought into the country through unauthorized route. He further stated that according to the Registration Book produced by the appellant, the vehicle is Toyota Corolla motorcar, while the seized vehicle is Toyota Crown Super Saloon, which does not match with the registration produced. He submitted that the impugned order be maintained and the appeal be dismissed.
8.I have heard both the parties and gone through the tile. From perusal of the record, the Customs Circle, D.I. Khan intercepted Toyota Crown Super Saloon bearing Registration No.LWN-5449. On demand, the occupant of the vehicle produced registration book, the vehicle was, however, found suspicious, therefore, the same was detained under section 17 of the Customs Act, 1969 for its verification.
9.From perusal of the record and the impugned orders, the appellant produced the import documents and Registration Book which were not questioned and the detention of vehicle was converted into seizure after receipt of the Chemical Examiner's report (FSL) and on the basis of that FSL report, the Adjudicating Authority considered the vehicle bears a tampered chassis plate, smuggled/non duty paid and brought into the country through unauthorized route.
10.So far the observation made by the learned Adjudicating Officer that the vehicle was seized on Dera-Daraban Road of KPK, far away from the border area having the Registration Book issued by MRA, Lahore allotted Registration LWN-5449 and also during investigation, no other vehicle found registered on the same chassis number. As regards, the other allegation of tampering in chassis number, from perusal of the FSL Report No.1635 dated 28-1-2010, the Examiner opined that "Chassis number is re-stamped one, the original chassis number filled with weld material and not decipherable". There is no opinion that another new number found in the chassis number neither the report shows that chassis sheet is replaced one. He has also opined that "The original chassis number filled with weld material and not decipherable. The present chassis number is re-stamped one." This statement of the laboratory Expert is not commensurable with the contention of the respondents/department because when the laboratory expert himself states that the present chassis number is re-stamped one, then how the vehicle in question is said to be tampered one. Besides this, it was observed that despite the contention with regard to its having been tampered through welding on the chassis plate, there is available no evidence, what-so-ever to show any other chassis number embossed on the chassis plate/place. Counsel for the appellant has also placed reliance on a judgment of a Larger Bench of this Tribunal consisting of 06 members delivered in Appeal No.Cus 150/PB/2009 dated 17-7-2009, the relevant portion of the concluding para of which (pago-4) is reproduced for the convenience of perusal, as under:--
"We have examined the case record and also considered the written as well as the verbal submissions of both the parties. On perusal of the case record, it has been observed that the examination of the chassis by Forensic Science Laboratory, Peshawar shows that the chassis number before the chemical treatment and after chemical treatment are the same. Although it has been stated in the report that the chassis frame has been cur and welded but it has not been clarified which portion of the vehicle has been cut and welded. While the laboratory itself showing that the same number has been welded and no other number deciphered underneath. It shows that the original number is also there and there was no other number found which shows that the said vehicle is tampered one. The Order-in-Original No.117/07 dated 29-6-2007 and Forensic Science Report was obtained on 27-7-2009 is it possible that the investigation is in progress and the adjudicating officer released the vehicle. It means that all the proceedings were after thought. Furthermore by the order of the learned Additional Collector the appellant deposited all the duty and taxes. Perusal of the Seizure Report shows that no where was mentioned that the seized vehicle had tampered chassis frame.
In view of the above circumstances, there is no force in the arguments advanced by the department, so the impugned order dated 20-4-2009 is set aside and the appeal is hereby accepted. Parties be informed through registered post A.D or by UMS.
File be consigned to the record after completion.
Sd/-Sd/-
(JAVED KAZI)(MIAN MUHAMMAD HANIF TAHIR)
MEMBER TECHNICALMEMBER JUDICIAL
Sd/-Sd/-
(HUMAYHUN KHAN SIKANDARI)(MUHAMMAD ARIF MOTON)
MEMBER TECHNICALMEMBER JUDICIAL
Sd/-
(HAFIZ AHSAN AHMAD KHOKHAR)
CHAIRMAN
Certified that this judgment consists of 5 (five) pages, each page has been dictated, read corrected and signed by me.
Sd/-Sd/-
(JAVED KAZI)(MIAN MUHAMMAD HANIF TAHIR)
MEMBER TECHNICALMEMBER JUDICIAL
Sd/-
(HAFIZ AHSAN AHMAD KHOKHAR)
CHAIRMAN
Customs, Federal Excise and Sales Tax
Appellate Tribunal"
11.In view of the fore-stated position, which fits in, in the facts of the present case with no other chassis number found but with an alleged welding and re-stamping, I hereby allow this appeal and set aside the impugned Order-in-Appeal No.107 of 2011 dated 30-5-2011 and order release of the vehicle in question, however, the learned counsel during arguments admitted that the vehicle is of model 1975 which body was much rusty, therefore, the appellant purchased another body and affixed on the vehicle in question, for which he could not produce any import documents of the replaced body, therefore, the leviable duty and taxes be charged from the appellant in addition to payment of 10% redemption fine of the customs value of the replaced body. The appeal stands disposed of accordingly.
Sd/-
Gulab Shah Afridi, Member Judicial
JJK/39/Tax(Trib.)Order accordingly.