JAVED KHAN VS SUPERINTENDENT CUSTOMS PREVENTIVE, MCC, ISLAMABAD, 2015 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 1183 (2014)

Customs Act (IV of 1969)---

----Ss. 2(s), 16, 17, 168, 171 & 194-A---Seizure and confiscation of vehicle alleged to be smuggled---Adjudicating Authority vide order-in-original, outrightly confiscated vehicle in question on allegation that same was smuggled---Appellant, who claimed to be bona fide purchaser of vehicle filed appeal against order-in-original---Two Forensic Science Laboratories, after examination and re-examination, confirmed that chassis of vehicle in question was cut, welded and refitted---Vehicle in question was fully proved to be smuggled one, which was got registered after changing its chassis number through cut and weld---Appellant, who could not prove himself to be bona fide purchaser of vehicle in question, had failed to point out any illegality or infirmity in impugned orders---Appeal against said orders being without merits, was dismissed, in circumstances.

Malik Waqar Mehmood Awan for Appellant.

Yawar Nawaz AC/DR for Respondent.

JUDGMENT

CHAUDHARY MUHAMMAD TARIQ, CHAIRMAN.---(1). This appeal has been directed against Order-in-Appeal No.85/2011, dated 13-12-2011 passed by the Collector of Customs (Appeals), Islamabad.

2.The learned counsel for appellant contended that the Customs staff of M.C.C. Islamabad intercepted one Toyota Land Cruiser (Model 1981 by appearance 1997 as per book), bearing Registration No.IDH-1119 having Chassis No.FJ60-016164, at Sector 1-9, Islamabad, from the possession of Javed Khan son of Mumtaz Khan Marwat r/o House No.F-242, Satellite Town, Rawalpindi. On demand, the appellant produced the registration book which seemed to be bogus. On examination, the Chassis number of vehicle was also found cut and welded.

3.To confirm genuiness or otherwise of the chassis number of the impugned vehicle, the same was referred to Forensic Science Laboratory, Capital Police, Islamabad, for carrying out its chemical test. The Incharge FSL, Capital Police Islamabad vide Laboratory Report No. 1515/2011 dated 4-5-2011 reported as under:--

The Technical Examination of the Vehicle has revealed the following:--

The above mentioned vehicle was examined and had been treated chemically, which reveals that:--

(i)The chassis number is neither grinded, nor tampered.

(ii)The chassis number is not self-punched. The formation and alignment of the digit is normal.

(iii)The chassis number place has been found cut and welded.

(iv)The chassis number place has been cut and another iron piece bearing No. FJ60-016164 has been welded on its chassis number place.

4.That after receipt of above said report the aforesaid vehicle was seized under Section 168 of the Customs Act, 1969, for having contravened the provisions of sections 2(s) & 16 of the Customs Act, 1969 read with S.R.O. 499(I)/2009, dated 13-6-2009 and section 3(3) of the Imports and Export (Control) Act, 1950, and accordingly a show-cause notice under section 171 of the Customs Act, 1969 dated 17-5-2011 was issued by the Additional Collector (HQ/NA).

5.That after adopting codal formalities the matter was adjudicated by the competent Authority who vide Order-in-Original No. 75 of 2011 dated 29-6-2011 outrightly confiscated the vehicle.

6.The Appellant assailed the Order-in-Original before Collector Customs (Appeal), Islamabad who dismissed the appeal vide Order-in-Appeal No. 85/2011 dated 13-12-2011 and upheld the Order-in-Original passed by the Additional Collector, MCC Islamabad. Hence this appeal.

8.Both the sides argued the case at considerable length. Arguments heard, Record perused.

9.During the pendency of the appeal, the appellant moved an application with the request that above said vehicle be re-examined from some other lab. On 7-2-2013 Muhammad Akhtar Awan Learned Member (Judicial) accepted the application and directed the department to re-examine the said vehicle.

10.That in compliance with the order of this Tribunal, the respondents got re-examined the said vehicle from the National Forensic Science Agency, Ministry of Interior, Islamabad who reported that the vehicle mentioned here in above was examined, there was no cut and weld or tampering of chassis number. The report dated 16-9-2013 prepared by the second Laboratory made the case of appellant at variance. Resultantly this tribunal vide Order dated 5-5-2014 asked the respondents for a 3rd lab report to resolve the controversy.

11.For further examination, the above said vehicle was sent to the FSL Police Investigation Peshawar who examined the vehicle and vide report dated 21-5-2014 declared that the chassis number of above said vehicle is welded and refitted chassis, frame piece. The 3rd lab report dated 21-5-2014 confirmed the first report conducted by FSL, Capital Territory Police, Islamabad. The contents of final Lab report are reproduced hereunder:--

"Welded and refitted chassis frame piece measuring 14 X 4-1/2 bears the following number FJ60-016164".

12.So far, as the lab reports are concerned the two lab, have confirmed that the chassis of the above said vehicle was cut and weld and refitted chassis frame piece measuring 14 X 4-1/2 inches bears the chassis number FJ60-016164.

13.Amongst others plaintiff has also taken ground in his appeal that the appellant is a bona fide purchaser of the said vehicle. Therefore, his rights be protected being bona fide purchaser.

14.The above ground negates all other grounds raised by the appellant because when a person claims himself to be a bona fide purchaser without notice under Section 41 of Transfer of Property Act. Thereafter he cannot take any other inconsistent plea but in the instant case the plea of a bona fide purchaser is also not available to the appellant because it had been continuously held by the superior courts that in case of stolen property a thief or a cheat cannot be given preference over the real owner.

15.In the above circumstances, it is fully proved that the above said vehicle was smuggled one which was got registered after changing its chassis number through cut and weld. Learned counsel for the appellant has failed to point out any illegality or infirmity in the impugned orders. The appeal is without merit; same is dismissed.

16.Announced.

17.Parties may be informed accordingly.

HBT/164/Tax(Trib.)Appeal dismissed.