2005 PLP (Trib (PTD)

SARFRAZ AHMAD KHAN, (MEMBER TECHNICAL).‑‑‑(1). This appeal is directed against Order‑in‑Appeal No.168 of 2004, dated 24‑1‑2004, passed by the Additional Collector of Customs, Excise and Sales Tax (Adjudication), Faisalabad, whereunder he ordered' outright confiscation of a Toyota Corolla Car bearing Registration No. RNG‑16, in terms of clauses 89 and 90 of subsection (1) of section 156.of Customs Act, 1969 read with S.R.O. 374(1)/2002, dated 15‑6‑2002. Earlier the vehicle in question was seized by the staff of Customs Anti‑Smuggling Organization, Sargodha, in pursuance of an information, on 7‑8‑2003 near PAF Hospital, Sargodha when the vehicle was being driven by Syed Mazhar Hasnain, the appellant. The intercepting staff of Customs observed that the chassis number plate was cut and welded. The documents provided by the appellant to the Customs staff also contained a copy of Forensic Science Laboratory Report No. 5910 of 1998, dated 29‑1‑1999, which was got conducted by CIA Police, Sargodha, under P section 550/Cr.P.C. According to the said report chassis number plate had been cut and another iron sheet bearing No. EE‑80‑7040952 had been welded abnormally. The vehicle in question was seized and a case was registered against the appellant. On receipt of report from the detecting agency; a show‑cause notice, dated 8‑9‑2003 was issued to the appellant (then respondent) proposing confiscation of the vehicle and penal action under the relevant provisions of Customs Act, 1969, as specified therein. The appellant (.then respondent) contested the charges framed in the show‑cause notice but, for the reasons recorded, the Adjudicating Officer passed the impugned order.

2. The case was heard on different dates. The appellant submitted written arguments through learned A.R., which are briefly as under:‑‑ (a) The show‑cause notice, dated 8‑9‑2003 invoked S.R.O. 1374(1)/98, dated 17‑12‑1998 when the said S.R.O. had also been rescinded on 15‑6‑2002. (b) Both the show‑cause notice as well as the impugned order invoked clauses 89 and 90 of subsection (1) of section 156 of the Customs Act, 1969 while both the clauses, being parallel to each other, could not be applied simultaneously in respect of the same goods because clause 89 applied to smuggled goods while clause 90 applied to other than smuggled goods. On this account the show‑cause notice as well as the impugned order were legally void. (c) Police Authorities of Police Station Factory' Area, Sargodha, seized the vehicle in question 'on 15‑12‑1998 and lodged an F.I.R. No.36. After getting test from Forensic Science Laboratory the vehicle in question was ultimately released on Superdari by the Judicial Magistrate, Sargodha on 4‑5‑1999 and the Customs Authorities could not seize/confiscate the same while the vehicle in question was still under the charge of the Court. . (d) The respondent department relied on the Forensic Science Laboratory report, dated 29‑1‑1999 for seizing the vehicle on 7‑8‑2003 and did not collect any, independent evidence against the appellant. (e) Principal Appraiser. Group‑VIII of Collector of Customs (Appraisement) Customs House, Karachi vide his Letter No. SI/Misc/232/90‑VIII, dated 12‑11‑1994 addressed to Motor Registering Authority, Rahim Yar Khan confirmed that the vehicle bearing Chassis No. EE‑80‑7040952 imported vide IGM No. 2004/91, dated 6‑11‑1991 Index No. 07 was cleared on payment of duty/taxes against the bill of entry Cash No. 4600, dated 10‑11‑1991 and on the basis of the said confirmation, the vehicle in question was registered. The Adjudicating Officer brushed aside the said evidence and without proving the same as false ordered confiscation of the vehicle which was in violation of the law settled by the Hon'ble Peshawar High Court vide its consolidated judgment, dated 21‑9‑2000 in Appeals Nos. 170, 171, 172 of 1999; 89 and 93 of 2000. (f) The Forensic Science Laboratory vide its report, dated 29‑1‑1999 did not report:‑‑ (i) The existence of any other chassis number or digit beneath the chassis number EE‑80‑7040952; (ii) That there was grinding and filling under the chassis place; (iii) That 'the chassis digits EE‑80‑7040952 had been manually punched.

3. The respondent side in respondent submitted written arguments and reiterated the same during hearing which were briefly as under:‑‑ (a) Operative S.R.O. 374(1)/2002, dated 15‑6‑2002 was also mentioned in the show‑cause notice and the relevant clause 89 of subsection (1) of section 156 of Customs Act, 1969 was also property mentioned both in the show‑cause notice as well as in the order‑in‑original. (b) The Police Authorities of Sargodha registered a case against the appellant in terms of sections 471, 420/468, Cr.P.C. while the Customs Authorities initiated action under the Customs Act, 1969 and it was not a case of double jeopardy. (c) The chassis plate had been cut and another sheet bearing chassis number had been abnormally welded and the appellant failed to provide proper evidence to justify the same. (d) The bill of entry referred to by the appellant was not relevant since the model, year, engine number and machine number, as mentioned in the duplicate copy of the bill of entry did not tally with the particulars given by the Principal Appraiser of Karachi Customs House. Actually model, year and engine number and machine number and date were fake. (e) Judgment of the Hon'ble Peshawar High Court was only valid for the respective persons and was also not applicable for Punjab Province. Furthermore the facts of the cases decided by the Hon'ble Peshawar High Court were different from the facts relating to the present case. The Laboratory report of the cases referred to in the judgment of the Hon'ble Peshawar High Court indicated that "no other number was deciphered. However the chassis plate bearing chassis number is re‑fitted" while the Forensic Science Laboratory report in, the present case indicated that chassis plate had been cut and another iron sheet bearing No. EE‑7040952 had been welded abnormally. Due to difference in the facts of the cases, judgment of the Hon'ble Supreme Court of Pakistan vide its judgment, dated 25‑6‑2002 in C. P.L.A. No.1809‑L/2002 titled as Muhammad Aftab Khan v. Assistant Director of Customs Intelligence was relevant which rejected the appeal and held that:‑‑ "A presumption of truth is attached to the report of Forensic Laboratory, being an official act. As apparent from the preceding paragraph the chassis number plate has been cut and another iron sheet has been welded on its number place. This clearly demonstrates that the number of the‑ vehicle has beer manipulated. " (f) Reference to the vehicle having met an accident and its repairs was false since the Mechanic of (Messrs Sarwar Motor Workshop, Sargodha) had denied the version of the appellant and a copy of the statement of the owner of the Workshop was enclosed with the written comments.

4. Contentions of both the sides have been considered in the light of the appeal file available before us and the relevant legal provisions involved in the case. The respondent side insisted on the Report No.5910 of 1998, dated 29‑1‑1999 of Forensic Science Laboratory Lahore, according to which, chassis number plate had been cut and another iron sheet bearing No.EE‑80‑7040952 had been welded abnormally. Admittedly, the said test from the Forensic Science Laboratory was got conducted by Sargodha Police Authorities which had seized the car in question on 15‑12‑1998 for proceedings under section 550, Cr.P.C. and an F.I.R. 36 was also lodged at PS Factory Area Sargodha. The respondent agency seized the vehicle on 7‑8‑2003 and was exclusively relying on the said report, dated 29‑1‑1999 of the Forensic Science Laboratory. The said laboratory test having not been got done by the respondent Customs Agency, it was required to prove the said report in terms of sections 73 and 78 of Qanun‑e‑Shahadat Order, 1984. The reporting agency never proved the said laboratory report, dated 29‑1‑1999 as primary evidence. Even when we examine the technical aspect of the said report‑‑"chassis number plate has been cut and another iron sheet bearing No. EE‑80‑7040952 has been welded abnormally"‑ we find that there was no report that:‑‑ (i) There was grinding and filing at the chassis place and underneath (after chemical treatment) some other digits were visible; (ii) That Chassis "No. EE‑80‑7040592" has been punched manually. Removal of chassis plate involves cutting/grinding of chassis place, then filling has to be done to make the grinded/cut chassis place at the even level with its surroundings and another sheet of iron; bearing manually punched digits, as to be welded. When another iron sheet bearing certain digits has chassis number is welded, those digits have to be manually punched because the mechanical punching available with the manufacturer of the vehicle would not be available outside. The Forensic Science Laboratory's report, dated 29‑1‑1999 is silent about these essential aspects and the detecting agency has not made any efforts to prove the same as primary evidence before the appropriate forum where the concerned expert could clarify these issues, during questioning, after seeing the relevant photographs and file of the laboratory. In absence of that, benefit of doubt is the right of the accused (the present appellant). On the other hand, we find that Motor Registering Authority, Rahim Yar Khan where the vehicle in question was originally registered under Registration No. RNG‑16, prior to registration referred the import documents to the Collectorate of Customs (Appraisement), Karachi from where the vehicle in question was cleared and Principal Appraiser Group‑VIII of the said Collectorate vide his letter No.SI/Misc/232/90 VIII, dated 12‑11‑1994 confirmed that the vehicle bearing Chassis No.EE‑80‑7040952 was imported vide IGM No. 2004‑/91, dated 6‑11‑1991, Index No.07, on payment of duty/taxes against bill of entry cash No.4600, dated 10‑11‑1991. The detecting agency again referred the matter to the Principal Appraiser Group‑VIII, Collectorate of Customs (Appraisement), Custom House, Karachi vide its Letter C. No. 1990, dated 1‑9‑2003 and the said Principal Appraiser vide his letter dated 10‑9‑2003, addressed to the Deputy Superintendent of the detecting agency, confirmed that "the copy of the duplicate bill of entry bearing cash/DA No. 4600, dated 10‑11‑1991 (IGM No: 2004/1991, dated 6‑11‑1991, Index No.7) has been retrieved from the record section" which confirmed clearance of "used Toyota Corolla Car, Chassis No. EE80‑7040952..." and that machine number of the bill of entry was 38011, dated 6‑11‑1991 and that it was cleared on payment of duty/taxes amounting to Rs.122480/vide cash/DA No.4600, dated 10‑11‑1991. The said Principal Appraiser reported that these particulars pertained to the duplicate bill of entry and the concerned department may scrutinize the triplicate copy of the bill of entry in the light of the said particulars. The said letter further reported that the answering Collectorate (Collectorate of Appraisement, Karachi) would not be responsible for any tampering/ forgery in the documents/the vehicle. The respondent agency and the Adjudicating Officer have drawn adverse meanings from the aforementioned report of the Principal Appraiser of Karachi Customs House. The Adjudicating Officer remarked that "although Custom House Karachi has confirmed the import documents but at the same time declared that confirmation is not relevant and valid". On the other hand; the detecting agency contended that model, year, engine number and machine number, as mentioned in the duplicate copy of bill of entry, did not tally with the particulars reported by the Principal Appraiser of Karachi Customs House and hence these were fake. A reference to letter No.SI/Misc/232/90‑VIII, dated 12‑11‑1994, addressed by Principal Appraiser Group‑VIII to Motor Registering Authority, Rahim Yar Khan, Letter No. SI/Misc/II/2003‑VIII, dated 10‑9‑2003, addressed by Principal Appraiser Group‑VIII to Deputy Superintendent Incharge ASO, Sargodha and a copy of bill of entry Cash No.4600, dated 10‑11‑1991 available on record revealed as under:‑‑ (i) Cash/DA number of the bill of entry was 4600, dated 10‑11‑1991; (ii) IGM number of the importing vessel was 2004, dated 6‑11‑1991 and index number was 7; (iii) The importer's name was Muhammad Younas Azad; (iv) It was a used Toyota Corolla Car having Chassis No. EE80 7040952; (v) The total amount of 'assessed and paid duty/taxes was Rs.122480. All these particulars tally in the letter, dated 12‑11‑1994 and dated 10‑9‑2003 and the particulars available on the bill of entry in question. The present appellant was not the original importer who got the vehicle cleared on payment of duty/taxes on 10‑11‑1991 and rather he claimed to have purchased the vehicle during 1996. Therefore, he could not carry ‑triplicate copy of the bill of entry, being the forth or fifth buyer after the original importer. When the bill of entry cash number and date, IGM number and date, index number, make of the vehicle and chassis number were confirmed by Principal Appraiser Group‑VIII, Custom House Karachi to Motor Vehicle Registering Authority, Rahim Yar Khan on 12‑11‑1994 and thereafter to the present detecting agency on 10‑9‑2003 and those particulars were the same as available on' the duplicate copy of the bill of entry and the chassis number (EE80‑7040952) remained the same on the bill of entry Cash No. 4600, dated 10‑11‑1991 as well as on the vehicle, when it was subjected to Forensic Science Laboratory Test during. 1998 and there being no other digits beneath the chassis plate other that the said number, we have no doubt in our minds that the vehicle in question is the same which was got cleared on payment of duty/taxes vide the aforementioned bill of entry. The detecting agency has failed to prove that either the said bill of entry was false or it was not connected with the present vehicle. In that situation, the citation referred to by the respondent side was not relevant to the present case. On the other hand, the judgment cited by the appellant of the Hon'ble Peshawar High Court was fully applicable to the present case. '

5. In view of the foregoing, the impugned order is set aside and the appeal is accepted. The vehicle Toyota Corolla Car bearing Registration No.RNG‑16 is ordered to be released to the appellant forthwith. C.M.A./323/Tax(Trib.) Appeal accepted.