2010 PLP 1001 (PTD)

Mr. Amjad-ur-Rehman, Deputy Collector Customs Peshawar (for hearing on 12-10-2009) (iii) Mr. Muhammad Jamil, Law Officer Peshawar Customs (for hearing on 20-10-2009)

8. The issues identified for discussion during these hearing are as follows:-- (i) Whether or not the vehicle under reference was the same as was auctioned by Peshawar Collectorate? (ii) Whether prescription of time limitation as 15 days by Peshawar Customs as against 60 days allowed by the motor vehicle registration authorities for registration of the vehicle was appropriate and lawful? (iii) Why delay of 16 months by Mr. Bilal Hussain for registration of the vehicle? (iv) Whether vehicle with tampered chassis number or engine number was registerable in the name of private persons under the law of motor vehicle registration authorities? And (v) Whether Mr. Bilal Hussain's complaint to F.T.O. Secretariat was time barred?

9. As regards the question whether or not this was the same vehicle as was purchased from customs auction, the Advocate stated that under instructions of F.T.O. Secretariat during the first hearing of the complaint on 9-7-2009, the vehicle was presented to , the Peshawar Customs for verification. The customs authorities examined the vehicle and compared it with the documents in their record and concluded that this was the same vehicle. This agreed position was countersigned by the customs authorities as well as the Complainant. [A copy of the same has been supplied by the Peshawar Customs and is available on record.] Mr. Amjad-ur-Rehman DR, also accepted this position as factually correct. However, the Peshawar Custom's recommendation in the sale certification that the vehicle be registered on the `visible chassis' number is quite revealing of the customs knowledge of the doubtful nature of the chassis number. Otherwise, there was no need to incorporate such a recommendation in the sale certificate.

10. As regards 15 days time limit prescribed by the Peshawar Customs as against 60 days prescribed by motor vehicle registration authorities, the Advocate stated that this was inappropriate, arbitrary and unlawful. The DR replied that raising this question at tuffs belated stage was unwarranted because-- (i) The Complainant had accepted this condition at the time of issue of sale certificate and taking over the possession of the vehicle; (ii) The 15 days condition was being uniformly prescribed in the sale certificates of vehicles auctioned by Peshawar Customs to encourage early registration of such vehicles to protect buyers against the sort of problems as had happened in this case. Had the Complainant complied with this condition, the complications ensuing from delay in registration would have been averted or reduced; (iii) The Complainant even failed to comply with the 60 days requirement of registration under the law of motor registration. Therefore, the complaint against prescription of 15 days time limit was meaningless at this stage.

11. As to why the Complainant did not get the vehicle registered in 15 days time limit prescribed by the Peshawar Customs and even 60 days time limit prescribed by motor vehicle registration authorities, the Advocate stated that the vehicle was meant for sale and so it was kept in the show room. He further stated that the Complainant overlooked the time limitation because the motor vehicle registration authorities accepted delayed requests for registration against payment of fine. Mr. Bilal Khurshed Anwar, Attorney of the Complainant, admitted that they had also been using the vehicle without its registration.

12. As regards the question whether tampered vehicles were being registered by the motor registration authorities, Mr. Amjad-ur-Rehman, DR, stated that he would need to confirm factual position from the motor registration authorities in Peshawar. The Advocate also promised to check up the legal position from the concerned authorities.

13. As the complaint was filed on 6-5-2009, which was within six months time limit from the date of the legal notice dated 27-3-2009, the arguments of DR that it was time-barred was not found to be valid.

14. After hearing the parties, it was mutually agreed to recheck on the following points: (i) Why the Peshawar Customs failed to respond to the Complainant's refund application dated 13-2-2009 and the Advocate's legal notice dated 27-3-2009? (ii) Why did the Peshawar Customs fail to comply with C.B.R.'s instructions under which tampered confiscated vehicles could not be put to public auction? And (iii) Whether the Peshawar Customs could take back the vehicle and refund the bid value plus repair charges incurred by the Complainant?

15. The Collector Customs Peshawar was asked to inter alia examine these points vide F. T. O. Secretariat letter of even number dated 15-10-2009. He respondent vide letter C.No. Cus-F.T.O./Com/ No.266/09/9370 dated 19-10-2009 that as the Complainant had filed a simple application for refund of sale amount of Rs.11,00,000 which was not substantiated by documentary evidence, it was not possible for Peshawar Customs to respond to an incomplete application. The question as to why F.B.R. instructions vide its letter No.10(1) AS/04 dated 18-10-2006 were not complied with by the Peshawar Customs was not replied by Collector Customs. As regards, whether the Peshawar Customs would be able to take back the vehicle, the Collector informed that a show-cause notice had been issued and that the Complainant's claim would be decided by the Deputy Collector of Customs (Auction) after affording ample opportunity of being heard.

16. On the next date of hearing on 20th October 2009 Mr. Jamil Ahmad, Law Officer raised the following new issues that: (i) Mr. Bilal Hussain and Mr. Bilal Khurshed Anwar had no locus standi in this case; (ii) Refund application did not indicate full address of the complainant, therefore no reply could be made on au incomplete address; (iii) F.T.O.'s jurisdiction is barred because show-cause notice has been issued by Peshawar Customs on 8-10-2009 and thus the matter is sub judice.

17. As regards locus standi of Mr. Bilal Hussain, the Peshawar Customs had themselves established it by issuing the sale certificate dated 4-7-2007 in his name instead of Mr. Taimoor Zeb who was the actual bidder in auction and who deposited the bid amount in the Government treasury. Therefore, raising the objection on locus standi of Mr. Bilal Hussain by the DR was not only invalid but also irrational and self-contradictory. Moreover, Mr. Bilal Khurshed Anwar also holds the power of attorney given by Mr. Bilal Hussain.

18. So far as incomplete address of the Complainant on his application dated 13-2-2009 is concerned, it does not form a valid excuse for the customs authorities for failing to respond to the application, as his complete address was already available in Customs file No.V-Cus (16)Auction/Veh/PRE-E/06/221/07/491 in which sale certificate dated 4-7-2007 had been issued in his name with full address. Besides, the follow up legal notice No.Nijat/2009/I dated 27-1-2009 addressed by the Advocate to Collector Customs, Peshawar, contained complete addresses of both the Advocate and Mr. Bilal Hussain. Despite this, the Peshawar Customs did not respond. Not even an interim reply was given. Therefore it was a lame excuse to say that the Peshawar Customs could not make a reply because of incomplete address on the complaint.

19. As regards the issue whether issuance of show-cause notice by the Peshawar Customs vide their C.No.Lot No.01/PR-E/Veh/06/07/635 dated 8-10-2009 asking the Complainant to join investigation bars F.T.O. jurisdiction in this complaint, the factual position is that Peshawar Customs did not issue any such show-cause notice till 8-10-2009 despite the fact that the Complainant's application and legal notice were both pending un-replied by them for a number of months. There is thus no basis for the Peshawar Customs to claim bar of jurisdiction at this belated stage because there was no show-cause notice in the field when the complaint was admitted by Federal Tax Ombudsman on 6-5-2009. Besides, there was no apparent requirement for issuance of a show-cause notice in respect of an application which requests cancellation of the bid and refund of the bid amount as the only contentious issue whether or not it was the same vehicle as was auctioned by Peshawar Customs had already been settled on 22-8-2009. The seizing officer, Mr. Inamulalh Khan, and the then Incharge State Warehouse had jointly examined the vehicle in the presence of Mr. Bilal Hussain in pursuance of F.T.O. instructions and confirmed it to be the same vehicle which was auctioned and delivered to Mr. Bilal Hussain. There was no other aspect which needed to be investigated for which a show-cause notice could be justified at this stage. It is also a fact that customs show-cause notices are not issued for inviting the parties to join any such investigation. They are rather summoned for joining the investigation through a call letter. If they failed to comply only then a show-cause notice could be justified and that too after giving sufficient reminders. An appropriate course for Peshawar Customs under the circumstances would have been to ask the applicant to appear before appropriate officer of customs to sort out any issue that needed clarification such as verification of the receipts of expenditure statedly incurred by the applicant on repair and renovation of the vehicle.

20. A critical issue involved in this case is that Peshawar Customs were under obligation to put this vehicle to chemical test for verification for the genuineness or otherwise of the chassis number, engine number, etc. before putting it to public auction. C.B.R. (now FBR) had already issued clear policy instructions vide its letters No.10(1) AS/2004 dated 24-3-2006 and dated 18-10-2006 in pursuance of the ECC's decision No.42/3/2006 dated 3-3-2006 to the effect that confiscated vehicles with tampered chassis number etc. would not be put to public auction. Under this policy letter, tampered/confiscated vehicles could only be sold to Government and semi Government institutions.

21. The Collector's argument that F.T.O.'s orders in complaint No.504/2004 dated 17-9-2004 were not in the field when the vehicle under reference was seized and confiscated in 2002 is misleading because (i) C.B.R.'s instructions vide their letters No. 10(1)AS/04, dated 24-3-2006 and even No.dated 18-10-2006 on disposal of tampered confiscated vehicles were in the field; and (ii) the F.T.O. decision in complaint No.504/2004 dated 17-9-2004 was also in the field when the vehicle under reference was put to auction.

22. Failure of the Peshawar Customs to put the vehicle to forensic test/chemical test to verify the genuineness or otherwise of the chassis number etc also misled the Customs Appellate Tribunal to assume that no question of tampering was involved in respect of this vehicle and thus they allowed its redemption on payment of fine and leveible duties and taxes under S.R.O.179(I)/2006 dated 30-2-2006 read with Section 181 of the Customs Act, 1969.

23. Another critical question involved in this case as that if the successful bidder was Mr. Taimoor Zeb of Peshawar who had deposited the entire bid money in the Government treasury, how could Peshawar Customs issue a sale certificate in the name of any body else than the successful bidder himself. There is nothing in the auction rules to suggest that the sale certificate could be lawfully issued to anybody other than the successful bidder. Therefore, the act of customs authorities to issue the sale certificate to a third party namely Mr. Bilal Hussain of Abbotabad was obviously unlawful, being in violation of the auction, rules.

24. The sale certificate issued by customs authorities to a third party may have led to another mischief which the customs authorities should have comprehended at the time of dealing with the bidder's written request for issue of sale certificate to a third person. When the sale certificate is issued in the name of bidder, it involves an obligation on his part to declare this purchase of an asset in his income tax return of the year. The act of issuance of a sale certificate by customs authorities in the name of a third party thus may have resulted in evasion of income tax on an amount of Rs.11,00,000, which clearly constitutes mal-administration on the part of relevant customs officials.

25. Yet another serious issue is, why the Peshawar Customs took more than six months to respond to the Complainant's application dated 13-2-2009 and also the follow up legal notice dated 27-3-2009 despite the fact that Mr. Bilal Hussain's complete address was available in' file No.V-Cus (16)Auction/Veh/PRE-E/06/221/07/491 in which the customs sale certificate dated 4-7-2007 had been issued. The legal notice also contained complete addresses of the Advocate as well as of Mr. Bilal Hussain. It is sell 'evident that inefficiency tantamounting to maladministration was very much there in handling this case.

26. Apart from gross irregularities and inefficiency committed by the Peshawar Customs, there are some misstatements and violations on the part of Complainant as well. Firstly, he claimed in his application dated 13-2-2009 addressed to Collector Customs, Peshawar that he was the bidder which was factually incorrect as the bidder was Mr. Taimoor Zeb and not Mr. Bilal Hussain, the Complainant. The Complainant's explanation that since sale certificate had been issued in his name he considered himself to be the bidder was not plausible because he was purchaser of the vehicle under reference not that the bidder. Another failing of the Complainant was that in spite of an express conditionality in sale certificate that the registration of the vehicle under reference was required to be done within 15 days of the issuance of aforesaid certificate, he failed to apply for registration of the vehicle even within 16 months. This failure not only created a procedural violation of the customs sale certificate but also of the law of motor registration authorities. Yet another violation was that until seizure of the vehicle by Islamabad Police, it was admittedly under unlawful use of Complainant's attorney, Mr. Bilal Khurshed Anwar, as it was plying without necessary registration documents.

27. In view of the above, it is evident that the problems relating to the vehicle under reference and initially created by the failure of Peshawar Customs to comply with C.B.R.'s instructions to sell tampered confiscated vehicles only to Government/semi Government institutions were compounded due to glaring irregularities on the part of the Complainant. Therefore, both the parties share the responsibility for creating, aggravating and complicating the problems involved in this case.

28. Under the circumstances, the desirable course would be that the tampered/confiscated vehicle was taken back by the Peshawar Customs for its disposal only to a Government/semi Government departments/ institutions etc in accordance with the guidelines provided by the C.B.R. (now FBR) vide its policy No.10(1)AS-04 dated 24-3-2006. The precedent available in F.T.O.'s decision in Complaint No.504/2009 dated 17-9-2004 and invoked by the Complainant in support of his request for return of the vehicle is applicable after adding the amount of repairs (Rs.2,15,000) statedly incurred by the Complainant was finally worked out by Peshawar Customs after verification of receipts as also the depreciation for the intervening period from 4-7-2007 to the date of its return to Peshawar Customs. The depreciation could be worked out on account of its retention and use by the Complainant in accordance with the rules of second hand vehicles being imported and assessed to import duties and taxes. Recommendations:

29. In view of the above findings, the following recommendations are made: (i) The confiscated/tampered vehicle under reference be taken back by Peshawar Customs; (ii) The sale value and the repair and renovation charges be paid to the Complainant after verification of the receipts of repair and renovation; and depreciating the value as per rules. (iii) The time limit for registration of vehicles purchased in customs auction be standardised by FBR at a uniform level of sixty days on all Pakistan basis; (iv) The responsibility of non-compliance of C.B.R.'s policy instruction about disposal of confiscated tampered vehicles be fixed; (v) The responsibility for the following acts of maladministration involved in this case be fixed and those responsible be proceeded against under the Removal From Service (Special Powers) Ordinance, 2000:-- (a) the Customs Officers who failed to comply C.B.R.'s policy instructions on disposal of confiscated/tampered vehicle; (b) the Customs Officer who made the misstatement that the chassis number of the vehicle auctioned by them was confirmed to be genuine and not tampered one without getting it checked in a forensic laboratory; (c) the Customs Officers who authorized or issued the sale certificate in the name of the third party instead of the successful bidder and also recommended its registration on the visible chassis number; (d) the Customs Officer who failed to take timely action on the Complainants application dated 13-2-2009 and his legal notice dated 27-3-2009.

30. Compliance be reported within 30 days. C.M.A./189/F.T.O. Order accordingly.