LAIQ VS ADDITIONAL COLLECTOR CUSTOMS (ADJUDICATION), PESHAWAR, 2018 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 792 (2017)

Customs Act (IV of 1969)---

----Ss. 2(s), 16, 17, 156(1)(8)(89), 168 & 194-A---"Smuggling"---Detaining and seizing vehicle brought into the country through unauthorized route without payment of duty and taxes---Non duty paid car without registration number, was intercepted by Customs Staff---Driver of said car failed to furnish any import document/proof of lawful possession of car---Car was detained under S.17 of the Customs Act, 1969---Car in question was established to have been brought into the country through unauthorized route without payment of duty/taxes and thus was "smuggled" one---Said car was seized under Ss.168 of the Customs Act, 1969 for violation of Ss.2(s) & 16 of the Customs Act, 1969 punishable under S.156(1)(8)(89) of the Customs Act, 1969---Additional Collector of Customs (Adjudication) had ordered the outright confiscation of the car---Validity---Appellant contended that car had been purchased by him in open auction from the Ordnance Depot---Record had revealed that car was purchased by the appellant in open auction conducted by the Ordnance Depot being a successful bidder against the payment of Rs.6,49,000 inclusive of 18% General Sales Tax and 10% income tax; but no customs duty/taxes were charged by the Seller Depot---Release of the car against payment of customs duty and taxes would be more beneficial to the Government Exchequer---Car in question was ordered to be released with the direction to the buyer to deposit the customs duty/taxes leviable on the car---Impugned order-in-original passed by adjudicating authority, was set aside.

Wahid Ali Khan for Appellant.

Naseer Khan, Superintendent and Muhammad Azeem, D.S. Customs for Respondents.

Date of hearing: 10th January, 2017.

JUDGMENT

CH. MUHAMMAD SHAHBBIR GUJJAR, MEMBER (JUDICIAL).---This appeal filed by Laiq son of Musa Khan etc. (Appellants herein) is against the Order-in-Original No.532/2016 dated 24.05.2016 passed by the Additional Collector (Adjudications) Customs, MCC, Peshawar.

2.Brief facts of the case are that the Customs Mobile Squad Nowshera, in pursuance of an information provided by the Assistant Collector Customs Anti-Smuggling Division Peshawar to the effect that a non duty paid Toyota Estate Car bearing registration No. Nil Model 1992 is plying at Hakeem Abad Nowshera. A reading party to intercept the same consisting of the staff was constituted which kept surveillance near Hakeem Abad Nowshera. On 02.10.2015, the said car coming from Rawalpindi side was stopped. Driver of the vehicle namely Liaq son of Musa Khan R/o Manki Shareef Nowshera, on demand, failed to furnish any import document/proof of lawful possession of the vehicle. Therefore, the vehicle was detained under section 17 of the Customs Act, 1969 on 02.10.2015.

3.The vehicle was referred to FSL Peshawar for chemical examination of its chassis number vide letter C.No.22260 dated 04.11.2015 who reported vide lab No. S.V.34-1551-0-15 dated 28.10.2015 that "No other number has been deciphered on its chassis number". A request was made to PRAL (Dryport) Peshawar who vide his C.No.PDRY/Comp/2015 dated 17.11.2015 intimated that the vehicle pertaining to Chassis No. CPB14-12538 could not be traced out in one customs date base. A letter was also issued to Ordinance Depot Nowshera Cantt vide C.N. 363 dated 19.10.2015 for supply of import documents/ bill of entry on the basis of which the vehicle was auctioned. In response, the Commandant, Ordnance Depot, Nowshera Cantt. vide his letter C.No. 1809/A/S&D dated 20th October, 2015 reported that the particulars of the said vehicle vide above mentioned voucher is hereby is hereby confirmed/ verified.

4.In view of the above, it was prima facie established that Toyota Estate Car having. Chassis No. CE106-0113849, Engine No. 2C-2993420 Model 1992 (as per seat belt 1997), has been brought into the country through unauthorized route without payment of duty/ taxes and in smuggled one, therefore, the same was seized under Section 168 of the Customs Act, 1969 for violation of sections 2(s) and 16 of the Customs Act, 1969 read with Section 3(1) of the Imports and Exports (Control) Act, 1950 punishable under sections 156(1)(8) and (89) of the Customs Act ibid and Section 3(3) of the Imports and Exports (Control) Act, 1950.

5.Subsequently, after completion of the requisite formalities, the matter was placed before Additional Collector (Adjudication) Custom House, Peshawar, who vide Order-in-Original No.532 of 2016 dated 24.05.2016 ordered to outright confiscation of the said vehicle Hence, the instant appeal on the following grounds:-

1. That the order of the lower forum is against Law Facts and circumstances. Of the case.

2. That the seizure of the said vehicle is illegal and not maintainable in the eyes of law.

3. That the seizure of the vehicle does not come under section 2(s) of the Customs Act, 1969.

4. That the vehicle has been purchased in open Auction from the Ordnance Depot Nowshera Cantt on huge amount and after payments of all taxes and fulfillment of all the legal requirements the vehicle was delivered to the successful bidder.

5. That the documents of the auction from the above mentioned department has been properly verified by the seizing agency.

6. That the vehicle is the one and same which has been purchased in open Auction from the responsible department.

7. That the appellants may kindly be permitted to be allowed any other Arguments/Documents at the date/time of hearing.

6.During the course of arguments learned counsel for the appellant, while reiterating the above grounds of appeal, contended that the vehicle in question has been purchased in open Auction from the Ordinance Depot Nowshera Cantt., against the payment of handsome amount and after payments of all taxes and fulfillment of all the legal requirements the vehicle was delivered to the successful bidder. He further contended that the documents of the auction have duly been verified from the above mentioned department by the seizing agency.

7.On the other hand representative of the respondent-department opposed the contention of the learned counsel for the appellant and stated that although the vehicle in question has been auctioned by the Ordnance Depot, Nowshera but the customs authorities were not informed by the said Depot for assessment of the customs duty and taxes, therefore, without payment of the customs duty/taxes, the vehicle cannot be said to be legitimized. He prayed for dismissal of the appeal.

8.Both the parties heard. Perusal of the record would reveal that the vehicle in question was purchased by the appellant in open auction conducted by the Ordnance Depot, Nowshera being a successful bidder against the payment of Rs.6,49,000/- inclusive of 18% General Sales Tax and 10% Income Tax, however, no customs duty/taxes were charged by the said department. As such, keeping in view circumstances of the case and to avoid opening a venue of further proposed litigation also the fact that in case of release of the vehicle against payment of customs duty and taxes will be more beneficial to the Government Exchequer, therefore, for early resolution of the controversy raised before this Tribunal the vehicle in question is hereby released with the direction to the appellant to deposit the customs duty/taxes leviable on the vehicle. The impugned Order-in-Original No.532/2016 dated 24.05.2016 is set aside and the instant appeal stands disposed of accordingly.

HBT/5/Tax(Trib.) Order accordingly.