2006 PLP (Trib (PTD)

RAJ MUHAMMAD KHAN, MEMBER (JUDICIAL).

This is appeal preferred by the Additional Director, Intelligence and Investigation (Customs and Excise), Regional Officer, Peshawar under section 194-A of the Customs Act, 1969 (hereinafter referred to as the Act) against the Judgment/Order of the Collector of Customs, Sales Tax and Federal Excise (Appeals), Custom House, Peshawar, whereby he accepting the appeal of Murad Khan appellant/respondent, ordered the release of vehicle Toyota Corolla Car No. M-9018 Peshawar, bearing Chassis No.AE-80-0032066, Engine No.2C-2172165 and Model 1983 (as per Registration Book), 1986-87 (as per physical examination and seat belt), valuing Rs.3,37,500 vide his Order-in-Appeal No.588 of 2005, dated 14-9-2005, copies of which were dispatched to the parties on 25-10-2005.

2. Brief facts of the case as narrated in the impugned Order-in-Appeal are that in pursuance of prior information that the aforesaid vehicle being non-duty paid, plying in Peshawar, the staff of Customs Intelligence, Peshawar intercepted it on 12-5-2005 near Gora Qabristan, Peshawar. Since its driver could not produce any legal document to show legal import or lawful possession of the vehicle except registration book, the vehicle was detained by the staff. On perusal of the registration book, which bore No.M-9018 (Peshawar) Old No. E-0773 (Karachi) was found to have been issued to a car of 1983 model, while the seized car was physically of 1986-87 model as was evident from the seat belt also. The Director, Forensic Science Laboratory (FSL), Peshawar was also asked on 12-5-2005 for chemical examination of the chassis plate of the seized car and the said laboratory reported as under: "Nos. before chemical treatment Nos. after chemical treatment Chassis No.AE-80-0032066 Chassis No. Replaced & Welded. Opinion: The original chassis sheet has been cut at the site of the chassis number and a piece of metal sheet bearing present chassis number is replaced and welded which measures 3" x 8" inches."

3. During further investigation, the previous owners of the vehicle named Mr. Amin Shah of District Haripur and Mr. Zar Muhammad of District Peshawar were summoned twice by the Investigating Officer for recording their statements regarding ownership of the seized vehicle but they did not appear before the Investigating Officer. Thereafter, a letter was written on 13-5-2005 to the Excise and Taxation Officer, Karachi with .a copy to the Superintendent of Intelligence and Investigation (Customs and Excise), Karachi for supply of import documents of the vehicle and for verification of the letter bearing No. ETO/MR -II(OR)1474/2001, dated 28-4-2001 purported to have been issued by the ETO, Karachi in response, the Deputy Director of Intelligence and Investigation (Customs and Excise), Karachi vide his letter C. No. Misc-Inq/Veh/DDI/Part/03/910, dated 7-6-2005 suplied only computer print of the seized vehicle, while other relevant documents were not traceable in the office of ETO, Karachi. However, on 8-6-2005, a letter No. ETO/MR-II(OR) A/1510/05, dated 6-6-2005 along with bill of entry was received by the Investigating Officer purported to have been issued by ETO, Karachi, which revealed that according to the bill of entry, one new Toyata Corolla Car, Model 1983, colour green was imported by one .Mrs. Tahira Begum Kyani, but the seized vehicle was 1986-87 model, colour white.

4. Since it was established through physical examination of the car as well as from the laboratory report of its chassis plate that the seized vehicle was smuggled one, brought into the country through unauthorized route and was not duty paid, which was being plied under the cover of fake registration number on which the chassis plate of some other vehicle of 1983 model was embossed, the detention of the vehicle was converted into, proper seizure for violation of the provisions of section 16 of the Act read with section 3(1) of the Imports and Exports (Control) Act, 1950.

5. Subsequently, on adjudication of the matter, by the Deputy Collector of Customs (Adjudication), Peshawar, show-cause notice, dated 20-6-2005 was issued to Messrs Murad Khan and Zar Muhammad (present respondents Nos.l & 2). They contested the case before the Adjudicating officer, pleading, inter alia, that the' vehicle had met an accident regarding, which case was registered vide FIR No.111, dated 8-7-1997 under sections 279/320/337, P.P.C. in which three persons sitting in the car had died on the spot and the vehicle had badly damaged. The incident was also published in the daily newspapers and thus any welding marks found on its chassis, could be the result of the repair of the vehicle. Similar would have been the case of the replacement of damaged parts with parts of model 1986 for model 1983 due to non-availability of the old parts in the market and thus modification of parts, including seat belt or mudguards, etc., or fabrication could not constitute smuggling. It was added that the FSL report obtained at the back of the respondents could not be relied upon without cross-examination of the laboratory expert. On the other hand, the assertion of the seizing agency was that the bill of entry was not relevant to the seized car as the seized car was of other model and that the chassis plate of the seized vehicle had not been repaired but the whole chassis plate was replaced one.

6. The Adjudicating Officer after hearing the parties and going through the record of the case, held vide his Order-in-Original No.499 of 2005, dated 20-7-2005 that the seized vehicle was smuggled one and thus ordered its outright confiscation under sections 2(s) and 16 read with section 156(1), (8), (9) & (89) of the Act, further read with section 3(1) of the Imports and Exports (Control) Act, 1950 and S.R.O. 374(I)/2002, dated 16-6-2002.

7. Aggrieved of the Order-in-Original No.499 of 2005, Mr. Murad Khan preferred appeal to the Collector of Customs, Sales Tax and Federal Excise (Appeals), Peshawar, which was contested by the Directorate of Intelligence and Investigation (Customs and Excise), Peshawar. After hearing the parties before him and examining the record, the Collector (Appeals) vide his Order-in-Appeal No.588 of 2005, dated 14-9-2005 held that the alteration of damaged chassis sheet and the replacement of the parts of the seized vehicle was done due to major accident and consequently, ordered the release of the vehicle unconditionally to its rightful owner, if the same was not required in any other case. Hence this second appeal preferred by the Additional Director, Intelligence and Investigation (Customs and Excise) Peshawar to this Tribunal against the Order-in-Appeal ibid.

8. It is pleaded by the appellant, inter alia, that the model of the seized vehicle is different from the one appearing in its registration book and its chassis plate is replaced and welded and thus the findings of the Collector (Appeals) are based on misconception of facts. That the respondents have not discharged the burden of proof under section 187 of the Act, and the bill of entry furnished in this case is not relevant to the vehicle in question.

9. During hearing of the appeal, a preliminary objection was raised by the respondent Murad Khan to the maintainability of the instant appeal on the ground that the appellant Additional Director, Intelligence and Investigation (Customs and Excise), Peshawar cannot be termed to be `aggrieved person' within the meaning of -section 194-A of the Act. This section provides, inter alia, as under: "194-A. Appeals to the Appellate Tribunal.

(1) Any person (or an officer of Customs) aggrieved by any of the following orders may appeal to the Appellate Tribunal against such orders: 6[(a) 7[xxxx]" According to section 174E-A ibid. `any person` or `an officer of Customs' both are qualified with the word "aggrieved" to be able to appeal to this Tribunal, since, the word aggrieved follows both of them. It has already been held in the authority laid down by the Hon'ble High Court of Sindh of Karachi in Special Customs (Appeal) No.282 of 2002 titled Director General of Intelligence and Investigation, Customs and Excise, Karachi v. Messrs Al-Faiz Industries (Pvt.) Ltd. and others that the interpretation of the term "aggrieved" refers to a substantial grievance, a denial of some personal, pecuniary or property right, or the imposition upon a party of a burden of obligation. In the light of this definition, the Director, Directorate General of Intelligence and Investigation (Customs and Excise), Karachi could not be termed as "aggrieved party" and he was not clothed with the function and powers of the Collector to enable him to file appeal nor he was an "aggrieved party" to file appeal. It may be stated here that the decision of the Hon'ble High Court of Sindh at Karachi has been maintained by the august Supreme Court of Pakistan in Civil Petitions Nos. 287-K of 2004, etc., decided on 17-10-2005.

10. The expression "aggrieved person" denotes a person who has got a legal grievance i.e., a person is wrongfully deprived of anything to which he is legally entitled and not merely a person who suffers some sort of disappointment but not suffer any personal injury or whose interest is adversely affected by a decree or judgment. The Detecting Officer or any such agency representing the prosecution is not an aggrieved person.

11. It has also been observed that while this appeal has been preferred by the Additional Director, Intelligence and Investigation (Customs and Excise), Peshawar, as evident from the memo. of appeal, it is signed by Dr. Sadiqullah Khan, Deputy Director, Intelligence and Investigation (Customs and Excise), Peshawar. Still the affidavit annexed to the memo. of the appeal, which is paged-5 on file, is signed by Mr. Abdul Latif, Intelligence Officer (Law), Customs Intelligence, Peshawar as deponent of the affidavit. Both the Deputy Director and the Intelligence Officer are not authorized to sign the memo. of the appeal or the affidavit on behalf of the appellant Additional Director. Even the affidavit has not been got attested from an Oath Commissioner.

12. It has been observed by the august Supreme Court of Pakistan in their order in Civil Petitions Nos. 287-K of 2004, etc., referred to above in paras-17 and 18 thereof that even the appeals purported to have been filed by the Collector, but not signed and verified by him and instead were signed or verified either by the Deputy Collector or Assistant Collector of Customs would also be deemed not to have been filed in accordance with law in view of the pronouncement made by the august Court in the case of Haji Abdullah Jan and others v. The State (2003 SCMR 1063) and State through Advocate General Sindh v. Hanif Ahmed and others. It was further observed by the august Court as under: "The contention that appeals in, which the nomenclature of the petitioner has been mentioned as Collector of Customs could not be deemed to have been filed illegally or contrary to law on the ground of not having been signed and verified by the Collector and further that it was merely an irregularity which could be rectified by allowing the Collector to sign the appeals does not appear to carry weight. In our above view we are fortified by the judgment of this Court in the case of Messrs Airport Support v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) wherein it was held that signing or non-verification of a petition by a wrong or unauthorized person would be detrimental to the petition and it will be to reproduce the relevant portion from the same as follows: "In the foregoing circumstances, while I am of the view that the act of termination and take over on the part of Civil Aviation Authority is neither lawful nor sustainable, the case remains unfit for execution of any relief here on account of the appellant's own conduct of which the most revealing is that the petition in the High Court was verified and affirmed by Hafizur Rehman, the Manager Director of the previous C.A.A. contractor, thereby relegating the relief to the appellant for the benefit of another, since a firm is nothing but a sum total of its partners. The jurisdiction under Article 199 of the Constitution being discretionary, the Court where equities require may even in the best of cases, choose to decline interference."

13. In the present case, although, the Additional -Director, Intelligence and Investigation (Customs and Excise), Peshawar, was competent by virtue of notification vide S.R.O. 1/2005, dated 6-1-2005 to exercise powers and discharge the duties of officers of customs under various provisions of the Act, specified in column (3) of the Table given in the notification, including section 194-A of the Act, but neither the Deputy Director nor the Intelligence Officer were so authorized to exercise such powers and so, they both could not sign or give affidavit to the appeal, where nomenclature of the appellant was shown as Additional Director.

14. On merits too, the seizing agency has termed the seized vehicle to be smuggled one, mainly on the grounds that physically the vehicle E was 1986-87 model with white colour (and as per seat belt), while as per registration book, it was 1983 model with green colour and the laboratory report, which reported its chassis number replaced and welded. It may be mentioned here that most of these materials relied upon by the seizing agency are variable factors and the contention of the respondents that the vehicle had met a fatal accident has not been rebutted. Modification and fabrication in the body and replacement of parts with parts of different model vehicle cannot be ruled out during the repair after the accident. The laboratory report has been obtained by the seizing agency from FSL. Peshawar without prior notice to the respondents and at their back. The seizing agency had not taken the trouble to have had brought the laboratory report on file in accordance with law, so that the respondents could have an opportunity to cross-examine the expert or the official, who produced the said report in evidence against them. The perusal of the impugned Order-in-Appeal would show that the vehicle is duly registered and the bill of entry contains the same chassis number, which the seized vehicle has got. It is an old vehicle of 1983 model, which must have undergone alteration and addition of parts thereto, particularly, when the prosecution has not been able to account for an imaginary vehicle to be other than the seized one. Moreover, the seized vehicle has not been examined by any Motor Vehicle Examiner or any dealer of Toyota Motors as to whether its chassis frame is of 1983 model or otherwise. Thus every doubt would exist in believing that the seized vehicle is not the same, which was imported as per bill of entry. The benefit of such doubt will naturally extend to the possessor of the vehicle in question.

15. In view of what has been stated above, this appeal is not maintainable in its present form and stands dismissed accordingly. C.M.A./28/Tax (Trib.) Appeal dismissed.