Malik ASHIQ HUSSAIN VS COLLECTOR OF CUSTOMS, MCC, ISLAMABAD, 2015 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 1214 (2014)

Customs Act (IV of 1969)---

----Ss 16, 17, 168, 193 & 194-A---Seizure and confiscation of vehicle---Vehicle having cut and welded chassis, was intercepted from appellant who claimed to be owner thereof---Appellant could not produce any document to substantiate payment of duty/taxes leviable against said vehicle---Vehicle was detained for requisition of the import documents and verification thereof and notice was also served upon the appellant---Forensic Science Laboratory, after Chemical/Laboratory test, intimated that the chassis number frame of vehicle had been cut, and other iron piece, had been welded on its chassis number place which had confirmed that vehicle was brought unlawfully into the country, without payment of duty and taxes levied thereon---Adjudicating Authority, vide order-in-original outrightly confiscated the vehicle---Appellate Authority dismissed appeal against order-in-original---Validity---Appellant, could not point out any illegality in the impugned orders, appeal, which otherwise was time barred, was dismissed, on merits and limitation, in circumstances.

2005 PTD 712; 2003 PTD 2594 and 2010 PTD 1418 ref.

Zafar Mahmood Mughal for Appellant.

Agha Sabir Hussain, S.I.O. for Respondents.

JUDGMENT

CHAUDHARY MUHAMMAD TARIQ, CHAIRMAN.---This appeal has been directed against the Order-in-Appeal dated 28-10-2011 by Collector Customs (Appeals), Islamabad.

2.Brief facts of the case are that the staff of Directorate, General of Intelligence and Investigation-FBR, Islamabad intercepted one Mitsubishi Pajero (Model 1993), bearing Registration No. BC-3157, having Cut and Welded Chassis No. CONV440PJ-00499 and Engine No. 4D56FC-4788, at GT Road, Rawat, from the possession of Malik Aashiq Hussain son of Malik Sher Ali R/o Flat No. 8, 2nd Floor, Akbar Plaza, G/l0 Markaz, Islamabad.

3.On demand the above named driver/owner could not produce any document to substantiate payment of duty/taxes leviable against the aforesaid vehicle. Therefore, the above mentioned vehicle was detained under section 17 of the Customs Act, 1969, for requisition of the import documents and verification, thereof. Notice under section 26 of the Customs Act, 1969 was also served upon the owner of the vehicle for production of the import documents.

4.For further verification, the vehicle was referred to Forensic Science laboratory, Islamabad for carrying out its chemical examination/ laboratory test. The Incharge FSL, Islamabad, vide Laboratory Report dated 22-2-2010, intimated that "the chassis number frame has been cut and another iron piece bearing No.CONV440PJ-00499 has been welded on its chassis number place" which confirmed that the vehicle was brought unlawfully into the country, without payment of duty and taxes leviable thereon.

5.For the reasons above the vehicle was seized on 24-2-2010; and the matter was referred to the Adjudicating Authority who vide order dated 16-8-2010 out rightly confiscated the seized Mitsubishi Pajero. The operative part of order-in-original has been reproduced here under:--

"I have gone through the case record and heard also head of the seizing agency as well as the respondent. Due consideration has also been given to the written/verbal submissions of both the parties. In the light of FSL, Islamabad's report dated 22-2-2010, it is confirmed that the chassis number of the impugned vehicle has been cut and another iron piece bearing chassis Number CONV440PJ00499, has been welded on its chassis number place, which means that the impugned vehicle is a Smuggled one and non-duty paid which was brought unlawfully into the country without payment of duty/taxes chargeable thereon. Hence charges levelled against the respondent in the show-cause notice stand established. I, therefore, order for outright confiscation of the seized "Mitsubishi Pajero (Model 1993), bearing Registration No. BC-3157, having Chassis No. CONV440PJ-00499 (Cut and Welded) and Engine No. 4D56FC-4788", in terms of clause (89) of section 156(1) of the Customs Act, 1969 read with S.R.O. 499(I)/2009, dated 13-6-2009 and section 3(3) of the Imposts and Exports (Control) Act, 1950, for violation of the provisions of sections 2(s) and 16 of the Customs Act, 1969, read with section 3(1) of the imports and Exports (Control) Act, 1950".

6.Feeling aggrieved the appellant filed 1st Appeal before Collector Customs (Appeals) Islamabad who dismissed the same on 28-10-2011. Hence this appeal on the grounds incorporated in the memo. of appeal.

7.Along with the appeal, the appellant also filed an application for the condonation of delay.

8.Learned counsel for the appellant first argued on the point of limitation and contended that the appellant remained sick due to Hepatitis Disease and further the appellant received the copy of impugned order late. For these reasons the appeal was filed late therefore, delay in filing the appeal against the impugned order be condoned. On merit. Learned counsel for the appellant argued that:--

(i)That after so called FSL report does not show any other number of deciphered except the present one on the chassis. Thus the confiscation on the basis is not sustainable.

(ii)That the provision invoked in the Show-Cause Notice particularly section 16 read with section 3(1) of the Import and Export (Control) Act, 1950 is not applicable as the vehicles are freely importable and there is no restriction or prohibition on the import of such vehicles. Sub-clause (89) of subsection (1) of section 156 of the Customs Act, 1969 is also not attracted as there was no reasonable ground exists to suspect the contraband nature of the vehicle. Thus the seizure itself is illegal and void.

(iii)That, the appellant purchased the said vehicle on 26-5-2009 from Zahid Shaheen son of Shenshah after verification from Motor Registration Authority Karachi.

(iv)That the appellant is bona fide purchaser and before purchasing the registration number was verified from Motor Registration Authority Karachi. The registration was allotted after verification of import documents.

9.In support of his contentions learned counsel for appellant relied on law laid down as 2005 PTD 712, 2003 PTD 2594, 2010 PTD 1418 and prayed that appeal be accepted, impugned order be set aside and the disputed vehicle be released unconditionally to the appellant.

10.Conversely, the learned DR resisted this appeal on the grounds that the appeal is badly barred by time and the appellant has failed to bring on record and plausible ground for the condonation of delay further contended that the disputed vehicle was examined by two Labs who concurrently found that the chassis number of the disputed vehicle is cut, and weld. He further prayed that the appeal be dismissed and impugned orders be maintained.

11.Arguments heard record perused. Perusal of record highlights that on 19-2-2010 the intelligence and investigation team of FBR, Islamabad intercepted the disputed vehicle i.e. Mitsubishi Pajero (Model 1993), bearing Registration No. BC-3157, Chassis No. CONV440PJ-00499 from the possession of appellant the vehicle was examined by FSL Islamabad Police who reported that the chassis number of disputed vehicle is cut and weld. Thereafter the matter was referred to the Adjudicating Officer who ordered for the confiscation of above said vehicle.

12.The appellant has filed the instant appeal on a number of grounds including the ground of bona fide purchaser. This Tribunal fully agrees with the argument of learned counsel for appellant that vehicles are freely importable and there is no restriction or prohibition on the import of vehicles but import will be legal only, if the vehicle has been imported in the country after adopting due process of law and payment of statutory duty and taxes.

13.This Tribunal is of the view that when the ground of bona fide purchaser is taken, this ground negates all other grounds because the aggrieved person asks for relief on the humanitarian and sympathetic grounds.

14.No doubt the law protects the rights of a bona fide purchaser but only where the title or vendor is clear while interpreting the principle of bona fide purchaser superior courts have laid down the law that preference could not be given to a thief or to a person who commits fraud as against the original owner. When the title of a person is not absolute the vendee/purchaser cannot claim protection under the principle of bona fide purchaser because a vendor transfers the same title to the vendee which he owns and by virtue of sale a defective title could not be changed into a perfect title.

15.Obviously there is no 2nd opinion about the cut and weld of above said vehicle.

16.The other aspect of this appeal is that the same was barred by 36 days. This appeal was filed by the appellant in person who later on engaged counsel to proceed with the matter. Thereafter the application for the condonation of delay along with medical certificate issued by a private doctor was filed with the application for the condonation of delay. The appellant/applicant has taken two pleas firstly that the appellant remained sick due to hepatitis and secondly he got the copy of decision late.

17.So far as the contention of the appellant is concerned that he received the copy of impugned order late is not tenable because the documentary evidence shows that the appellant received the copy of impugned order well in time.

18.Second plea of appellant about his sickness is also not plausible.

19.As discussed above this Tribunal is of the considered view that learned counsel for appellant could not point out any illegality in the impugned order. Grounds raised in this appeal were already agitated before both the forums below who dilated upon the matter in detail and passed well reason order. This appeal is without merit which is dismissed both on merit as well as on the ground of limitation. The application for condonation of delay is also dismissed.

20.Announced.

21.Parties may be informed accordingly.

HBT/165/Tax(Trib.)Appeal dismissed.