2008 PLP (Trib (PTD)

SYED KAZIM RAZA SHAMSI, MEMBER (JUDICIAL).

This customs appeal filed under section 194-A of Customs Act, 1969 is directed against an order-in-original ,dated 25-6-2004 passed by Additional Collector (Adjudication), Multan whereby vehicle bearing Registration No.E-2545 Toyota Hiace Van was ordered to be confiscated under clause 89 of section 156(1) of Customs Act, 1969.

2. Facts of the case briefly stated are that on the secret information that Toyota Hiace Van bearing Registration No.E-2545 Model 1984 was a smuggled vehicle whose chassis number has been cut and re-welded and chassis number of vehicle of model 1987 which was smuggled vehicle had been affixed thereon, the said vehicle was intercepted by the Anti-Smuggling Squad on 14-9-2003 near Chicha Watni. Muhammad Shahbaz the driver of the vehicle produced the registration book of the vehicle. The vehicle was examined in presence of driver and it was observed that the chassis number of the vehicle was cut and refitted. Later on the vehicle was sent for chemical examination, Islamabad which reported that full panel of chassis sheet was welded and re-fitted on the chassis place. On the basis of these facts show-cause notice was served upon Muhammad Shahbaz the driver and Muhammad Saleem the owner of the vehicle as per registration book. The notice was contested by them contending that full chassis panel of the vehicle can not be affixed in the vehicle without the process of welding and laboratory test of a new van will result in the same report. It was further stated in the reply that vehicle being 21 years old whose tool box was regularly used due to which scratches may occur on the chassis number which is affixed in the tool box. Reference was also made to the cases of similar nature decided by the same Adjudication Collectorate. The Additional Collector (Adjudication) after considering all these facts came to the conclusion that full panel chassis sheet of van No.E-2545 was welded and refitted, thus was a smuggled vehicle and ordered outright confiscation of the same. Hence this appeal.

3. Arguments heard and record perused.

4. Learned counsel for the appellant while opening the arguments has pointed out order, dated 28-9-2004 passed by this Court wherein six points have been recorded by the Court which were sent to the Forensic Science Laboratory, Lahore for report. These points are as follows:- "(1) Whether chassis place has been grinded? (2) On comparison of iron sheet of 'the chassis panel with the other iron sheet used in the vehicle, whether those are identical or different from each other. (3) Whether chassis panel has been welded with the body of the vehicle and whether the welding marks are visible? (4) Can chassis panel be fixed in Toyota Hiace Van without welding and soldering and whether chassis panel of the vehicle in question was fully or partially welded? (5) Whether box of the chassis panel in wagon like Toyota Hiace Van can be used as tool box affixed on the chassis panel? (6) Whether the wagon in question was got repaired after accident or not and what was the physical condition of the body of the vehicle?"

5. The Forensic Science Laboratory Punjab, Lahore vide report, dated 7-12-2004 answered the quaries in the following words:- "(1) The chassis number place has not been grinded. (2) The iron sheet of the chassis panel compared with the body of said vehicle are same for detail you can ask manufacturer. (3) The chassis panel has been attached with the body of vehicle some welding spots are visible. (4) The panel cannot be fixed with the body without welding/ soldering the chassis panel is partially welded. (5) The box of the chassis panel of Toyota Hiace Van can be used as a minor tool box. (6) The wagon in question seems to be repaired the body of the said vehicle is very poor and rusty."

6. The learned counsel while explaining these points submitted that the chassis number was not grinded and welding/soldering appears on the body could be due to repairs conducted during the life of the vehicle i.e. 21 years old and that according to the report the body is in very poor shape and rusty in nature thus he concluded that the inference drawn by the Additional Collector (Adjudication), that it is a smuggled vehicle is in-correct. The report has been examined in the light of these submissions which forcefully supports the contention of the appellant that the vehicle was not smuggled vehicle and the partial welding point noted in the report could be the result of the repair as the vehicle was imported in the year, 1984 and during 20, 21 years it needs repairs of and on. The main point in the report are points Nos. 2, 4, 5 and 6 which inspired the confidence and prove that vehicle in question was not a smuggled one. The department did not rebut these points in any manner. Further more according to the allegation as levied in the show-cause notice the informer had given the information that chassis place of 87 model smuggled Hiace Van was re-welded in the vehicle of 84 mode. The department has miserably failed to collect the evidence about the chassis number of van of 1987 model whereas the documents on the file i.e. bill of entry appearing at page 56 of the paper book clearly shows that the vehicle in question was imported along with four other vehicles of similar nature having the same chassis number as was available in the vehicle in question and proper duties and taxes were paid on the import of these vehicles. Further more the Adjudicating Officer has ignored the decision of Hon'ble Peshawar High Court, dated 21-9-2002 recorded in F.A.O. No.170 of 1999 as well as the decision of the same Adjudicating Collectorate available in the paper book from pages 22 to

55. It is requirement of law that adjudicating authority should be consistent in deciding the identical matters but the authority did not remain consistent while deciding case in hand. This Tribunal had also declared the confiscation of vehicle as illegal in Customs Appeals Nos. 84 and 244/LB/04 while passing the judgment on 30-8-2004. In these circumstances the order passed by the Additional Collector (Adjudication) is not sustainable in the eyes of law and same is set aside.

7. For the fore-going reasons the appeal is accepted by setting aside the impugned order. It is ordered that the vehicle No. E-2545 Toyota, Hiace Van be released un-conditionally to the lawful, owner after due verification of ownership. Parties be informed through registered post or by UMS. C. M.A./174/Tax(Trib.) Appeal accepted.