2004 PLP (Trib (PTD)

Date of hearing: 10th February, 2004. This is appeal against the Order‑in‑Appeal No. 376 of 2003 passed by the Collector of Customs (Appeals), Peshawar on 21‑6‑2003 whereby he dismissed the appeal of the appellant Gul Nawab against the Order‑in‑Original No. 161 of 2003 passed by the Deputy Collector of Customs (Adjudication), Peshawar.

2. Brief facts of the case are that the Customs Mobile Squad, Mansehra intercepted vehicle Mitsubishi Pajero Jeep bearing Registration No. BEA‑46, Chassis No. L048G‑3003988 and Engine No. 4D56‑C 114964, Model 1984 on 4‑11‑2002 at, Salhad in District, Abbottabad at 1300 hours while it was on its way from Abbottabad. When asked, the occupant of the vehicle namely Muhammad Samiullah produced photo copy of the Registration Book as well as copy of the Bill of Entry which was sent to the Computer Cell, Custom House, Peshawar for verification while the vehicle was sent to the Forensic Science Laboratory (FSL), Peshawar for chemical examination of its chassis number. Mr. Gul Nawab was found owner of the vehicle as per Registration Book while Muhammad Samiullah is shown as driver of the vehicle in the inventory of the vehicle. The said laboratory vide its No. SV: 29190, dated 31‑10‑2002 reported that the present chassis number was replaced and welded and opined that the original chassis frame has been cut at the site of the chassis number and a cut piece of metal frame bearing present chassis number is replaced and welded which measures 48 x 2 inches. Consequently, the vehicle was seized 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, punishable under section 156(2)(8)(90) of the Customs Act, 1969 as it was found to be smuggled one. During adjudication proceedings, Show‑Cause Notice vide C. No. Cus/DC(Adj)/10/2003/14, dated 2‑1‑2003 was issued by the Adjudicating Officer in reply to which the accused respondent contended that the vehicle was duly imported one by one Akbar Jan vide Bill of Entry No. 320 of 1997, dated 12‑6‑1997 on which duty and taxes were duly paid. It was also contended that the seizure was mala fide because, the vehicle was shown as seized on 4‑11‑2002 but the Chemical Expert Report was dated 31‑10‑2002, i.e. before the seizure date. After hearing the parties and perusing the record, the Adjudicating Officer held that the appellant respondent did not prove legal import or lawful possession of the vehicle and so ordered its outright confiscation. Aggrieved of the Order‑in‑Original, the owner of the vehicle Gul Nawab went in appeal before the Collector of Customs (Appeals) wherein it was pleaded by him, inter alia, that he was bona fide vendee of the seized vehicle who bound it in the open market with proper import documents such as Bill of Entry and that the seizure was not in accordance with law. It was added that no notice under section 171 of the Customs Act was given to the owner of the vehicle. The appellant also requested for re‑examination of the chassis of the vehicle by the Forensic Science Laboratory. After hearing the parties and examining the record of the case, the learned Collector (Appeals) held that the request for re‑examination of the chassis number was not tenable and finding that the chassis number of the seized vehicle was replaced and welded, he dismissed the appeal of the appellant. Hence this second appeal to this Tribunal.

3. It is pleaded by the appellant in the memo, of his appeal, inter‑alia, that the seized vehicle is duty paid which is legally imported and its seizure by the respondents is mala fide.

4. During hearing of the appeal before this Tribunal, Mr. Imtiaz Ahmad, Chemical Expert of the FSL Laboratory, Crimes Branch, Peshawar was examined on 10‑2‑2003 who was one of the signatures to the chemical examination report of the chassis number of the vehicle in question copy of which is Exh. CW‑1/1. He produced copy of letter (Exh. CW‑1/2) bearing C. No. 304, dated 30‑10‑2002 which was addressed to the Director of the FSL, Crime Branch, Peshawar by the Deputy Superintendent Incharge, Customs Mobile Squad, Mansehra, asking for chemical examination of the chassis number of the vehicle. According to the chemical expert, the request of the Deputy Superinten dent, Customs Mobile Squad, Mansehra was received by the laboratory on 31‑10‑2002 and the required report was dispatched by the laboratory to the Deputy Superintendent, Customs Mobile Squad, Mansehra vide Dispatch No. 13396/FSL dated 4‑11‑2002. He also produced photographs of the chassis number taken before and after chemical treatment thereto. These photographs are Exh. CW‑1/3 and Exh.CW‑1/4 respectively. In his cross‑examination by the counsel for the appellant, the witness stated that there was no tampering in the digits of the chassis number and that the cut in the frame could be due to repair also. Since he was not metallurgist, he could not say as to whether the whole frame in its present condition was of the same metal or otherwise. In his cross examination by the D.R., it was replied that the witness was not motor mechanic or welder.

5. I have heard learned counsel for the appellant and D.R. for the respondents and have gone through record of the case.

6. The respondents have not denied the fact to have sent the vehicle for chemical examination of its chassis number of FSL prior to 4‑11‑2002. Not only that the laboratory report itself indicates the date of its entry with it as 31‑10‑2002 but the statement of Mr. Imtiaz Ahmad, Chemical Expert of the said laboratory examined in this Tribunal coupled with the copy of the letter, dated 30‑10‑2002 Ex‑CW 1/2 on file, fully indicates that the vehicle was retained for want of verification of its chassis number on 30‑10‑2002. The fact that the vehicle was examined through FSL on 31‑10‑2002, is also admitted in parawise comments submitted by the respondents to the Collector (Appeals), reproduced in para. 6 (g) of the Order‑in‑Appeal. It means that the recovery memo. being important document in this case, showing the examination of the vehicle by the Customs Mobile Squad, Mansehra, the non‑production of proof of import of the vehicle by the appellant, its seizure besides the statement of the occupant of the vehicle thereon to the effect that he did not possess any document relating to the import of the vehicle at the very moment and serving notice on him under section 171 of the Customs Act, 1969, must have been prepared prior to 30 or 31‑10‑2002 and not thereafter and that the date of its preparation as shown 4‑11‑2002 is nothing but manipulation. Such as would be the case of the Seizure Report etc. shown prepared on 4‑11‑2002.

7. The Show‑Cause Notice vide C. No. Cus/DC(Adj)/10/2003/14 has been issued in this case by the "Adjudicating Officer, as is evident from the Order‑in‑Original No. 151 of 2003, on 2‑1‑2003. The detention/ seizure of the vehicle is made on 30 or 31‑10‑2002. Thus the show‑cause notice: under section 168(2) was, issued after expiry of two months of the seizure of the vehicle in this case but in order to camouflage or conceal the actual date of seizure, the date of recovery and seizure has been fictitiously post dated as 4‑11‑2002 to cover the expiry of limitation of two months in this case under section 168(2) of the Customs Act, 1969. It is clearly stated in the impugned Order‑in Appeal in para. 2 thereof that at the time of interception of the vehicle, its occupant was asked to produce copy of the Bill of Entry and he submitted the same after some time which was sent to the incharge Computer Cell, Customs House, Peshawar while the vehicle was sent to the FSL, Peshawar for chemical examination of its chassis number. So the chemical examination, as is evident from the letter of Deputy Superintendent, Incharge, Customs Mobile Squad, Mansehra, Exh. C.W. 1/2, dated 30‑10‑2002, that the request to the laboratory for the required analysis was made after the seizure was effected. There does not appear any notice to have been served by the Defecting Agency under section 26 read with section 20(kk) of the Act. The recovery, memo prepared in this case shows it in bold words, the Details of Articles Seized and it was the one, which was the vehicle in question.

8. The provisions of section 168(2) of the Customs Act, 1969 are mandatory in nature and lapse of the prescribed time cannot be construed to be an irregularity or technicality, which can be condoned. The show‑cause notice happens to be only for adjudication proceedings C and must be given in time. It is a right of a person and such a right having accrued, it could not be defeated by an order passed after the lapse of the prescribed period. In the case titled "The Collector of Customs, Lahore and others v. Haji Noorul Haq, the Honourable Supreme Court of Pakistan, in their Review jurisdiction, reported in PTCL 2003 CL 723, did not allow the review as the sow‑cause notice was not served even within the extended period under section 168 of the Customs Act, 1969.

9. So far the factual aspect of the case is concerned, the appellant has provided copies of documents of visa showing the import of the vehicle under Transfer of Residence (TR) facility availed by the one Mr. Akbar Jan, vide TR No. 187 of 1997, dated 11‑6‑1997 and got cleared the vehicle from Dry Part of the Collectorate of Customs, Peshawar, a used Mitsubishi Pajero Jeep 1984‑Model, which he had purchased on 1‑4‑1995, bearing Chassis No. LO‑48‑G‑3003988, when he arrived in Pakistan from abroad on 7‑5‑1997. The appellant has also produced copy of Bill of Entry which also shows importation of the vehicle with the same chassis number duly imported by Mr. Akbar Jan. There is also copy of the Certificate of Registration showing the registration of the vehicle by the Motor Registration Authority, Buner under Registration No.Buner‑46 in the name of the appellant Gul Nawab who had purchased the same from the importer Akbar Jan and in this respect has produced copy of affidavit of Akbar Jan, stating to have sold the vehicle to the appellant. The seized vehicle is also of the same description bearing the same chassis number and same model. It is an old vehicle of 1984 model brought into the country in used condition and it is not certain as to whether its chassis frame was got repaired at the site of chassis number and a cut piece metal frame was replaced and welded before or after clearance of the vehicle from the Dry Port, Peshawar. It is not pointed by the respondents as to what benefit could accrue to the appellant or the importer Akbar Jan in replacing the chassis number of duly imported vehicle of another alleged smuggled vehicle of the same condition and type. There is no tampering reported in the digits of the chassis number and therefore, doubt exists in believing the seized vehicle to be smuggled one. The respondents having also not shown the whereabouts of the imaginary legally imported vehicle and their presumption regarding the seized vehicle to be smuggled one, is based on the exclusive evidence of the FSL Laboratory, Peshawar which was obtained at the back of the appellant.

10. In view of what has been stated above, it is held that the show cause notice issued to the appellant in this case by the Adjudicating Officer was time‑barred and the vehicle in question is one duly imported into the country and duty paid. Consequently, this appeal stands accepted, the impugned Order‑in‑Original as well as Order‑in‑Appeal are set aside and it is ordered that the seized vehicle shall be returned to its rightful, owner unconditionally, if not required in any other case. The, Collector of Customs, Peshawar is directed to probe the matter of forgery committed by the Seizing Agency by fraudulently making various documents to appear post‑dated and take legal action against the culprits and inform this Tribunal of the outcome in due course of time. Needless to say that the probe shall not cause any delay in any manner in the restoration of the vehicle to its owner.

11. Announced C. M.A.61/Tax (Trib.) Order accordingly.