2019 PLP (Trib (PTD)

SYED SARDAR HUSSAIN SHAH, MEMBER (JUDICIAL).

This appeal is filed by Hidayat Ullah son of Zarab Din (herein after called appellant) against the Order-in-Appeal No.157 of 2016, dated 20.04.2016 passed by the Collector of Customs (Appeals), Islamabad, Camp Office, Custom House, Peshawar, whereby he dismissed appeal of the appellant.

2. Briefly stated the facts of the case are that on 10.04.2015, the customs staff stopped a Toyota Coaster No.LES-191, chassis No.BB420002404, Engine No.125337 and Model 1993 for want of its legal import documents. On demand, the driver namely Hidayat Ullah son of Zarab Din, resident of Shaheen Muslim Town, Mohallah Afridi Abad No.1, Peshawar failed to produce any legal import documents, therefore, the said vehicle was detained under section 17 of the Customs Act, 1969 for verification of its legal status. The chassis number of the vehicle in question was referred to PRAL, Custom House, Peshawar with the request to check the data pertaining to imported vehicles as to whether the vehicle in question has been legally imported or otherwise. In response, it was intimated vide C.No.PCUS/COMP/2015/329 dated 05.05.2015 that the record of the vehicle pertaining to Chassis No.BB420002404 could not be traced out in One Custom Data Base. The Director, Forensic Science Laboratory (FSL), Peshawar was requested for chemical analysis of its chassis number. The Director FSL, Peshawar reported vide Lab. Report No.34-557-0-15 dated 14.04.2015 that:- Nos. Before chemical treatment Nos. Before chemical treatment Chassis No.BB42-0002402 Chassis No.BB4x-000XXOX Opinion: Chemical examination of the chassis number of the vehicle in question revealed that:- The original digits marked as 'X" are refitted with weld material and not decipherable. The present digits are re-stamped one. In light of the above verification and investigation, the detention was converted into seizure under Section 168 of the Customs Act, 1969 for violation of Section 2(s) and (16) of the Act, read with Section 3(1) of the Imports and Exports (Control) Act, 1950. A case FIR No.89/2015 dated 10.04.2015 was also lodged in the l&P Branch Custom House, Peshawar against the appellant.

3. Subsequently, after completion of the requisite formalities, the matter was placed before the Deputy Collector of Customs (Adjudication) Peshawar, who vide Order-in-Original No.165/2016 dated 21.01.2016 outrightly confiscated the vehicle. Hence the instant appeal.

4. Aggrieved of the Order-in-Original, the appellant filed appeal before the Collector of Customs (Appeals), Peshawar who vide Order-in-Appeal No.157 of 2016 dated 20.04.2016, dismissed the appeal. Hence the instant appeal.

5. I have heard both the parties and gone through the record of the case.

6. Actually the appellant took benefit of an amnesty scheme vide SRO.172(I)/2013 dated 05.03.2013, read with SRO.185(I)/2013 dated 08.03.2013, produced before the Adjudicating Officer blue and white colour Toyota Coaster bearing chassis No.BB420002404, Engine No.125337 and Model 1993 (3600 CC) for physical inspection and for the payment of duty and taxes to the Deputy Collector Customs vide application dated 30.03.2013. The vehicle was examined and the examiner/inspector reported to the Deputy Collector Customs (Adjudication) that apparently the chassis number of the vehicle is genuine and non tampered. The Deputy Collector Customs (Adjudication) vide his Order dated 31.03.2013, directed the Motor Registration Authority to register the vehicle against original copy of the Order-in-Original, original challan and N.O.C. and confirmed the payment of leviable duty/taxes and redemption fine. The Deputy Collector Customs (Adjudication) issued N.O.C. for the registration of the vehicle in the name of Mr. Banaras Khan son of Zarab Din subject to production of the above documents. The appellant produced all these documents to the MRA, Lahore and also paid all dues as per Challan of the Excise and Taxation Department, Lahore. The vehicle was registered in the name of the appellant and Registration No.LES-14-191 was allotted to the vehicle. Later on Banaras Khan sold the said vehicle to one Hidayat Ullah son of Zarab Din of Shaheen Muslim Town, Mohallah Afridiabad No.1, Peshawar. On 10.04.2015, the customs authorities seized the vehicle near Motorway Toll Plaza, Peshawar. The arguments of the representative of the respondents is that on receipt of letter dated 18.09.2015 from MRA, Lahore, they seized the vehicle on 19.02.2015. The vehicle was examined through the FSL, Peshawar and their report dated 14.04.2015 is reproduced as under:- Nos. Before chemical treatment Nos. Before chemical treatment Chassis No.BB42-0002402 Chassis No.BB4x-000XXOX Opinion: Chemical examination of the chassis number of the vehicle in question revealed that:- The original digits marked as "X" are refitted with weld material and not decipherable. The present digits are re-stamped one.

8. No doubt, the chassis number before the chemical treatment and after the chemical treatment is different but the customs authorities allowed the registration of the vehicle in this position, the chassis number was not tampered later on but it was like that, as at the time of production of the vehicle before the customs authorities they not bothered to examine the vehicle in question through an expert for the reasons best known to them and issue N.O.C. for the registration of the vehicle. It was the responsibility of the customs authorities to examine the vehicle properly at the time the appellant produced the same and after that issued N.O.C. to the appellant to pay duty and taxes. The vested right accrued to the appellant through actions and inactions of the customs authorities. At this stage, the respondents cannot negate their actions, which is mockery with law and with people of the land and with the rights of the citizens. They should have to be careful with the examination of the vehicle at the time of clearing it, and if they not do so at proper time, now they would not object on the vehicle at any angle. Fundamental rights guaranteed under Articles 23 and 24 of the Constitution are inalienable rights of any citizen. Such constitutional guarantees are subject to legitimate exercise of powers of the eminent domain of state. Public functionaries are under obligation to ensure that their actions are based on just decision. Since improper exercise of powers of forcibly taking a citizen property is not an infringement of his constitutional right to own, possess and enjoy his property. Any unlawful deprivation of property also entails a violation of right of liberty. Unauthorized action of authorities erodes rules of law. Any action of the respondents could not be deemed to take away or impair the vested rights acquired through the process conducting by the respondents, which in fact attached a new obligation on the appellant which has not foreseen at the time of production of his vehicle for legalization. Public functionaries vested with power in respect of determination of rights of citizens regarding state resources are required to exercised such powers and discretion fairly and properly on judicial principles and keeping in view the relevant consideration having logical nexus with the object of law and not arbitrarily and whimsical.

9. In view of the above discussion, I accept this appeal, set aside the Order-in-Appeal No.157 of 2016, dated 20.04.2016 passed by the Collector of Customs (Appeals), Islamabad, Camp Office, Custom House, Peshawar and Order-in-Original No.165/2016 dated 21.01.2016 and direct the respondents to release the vehicle to the appellant unconditionally. SA/87/Tax(Trib.) Appeal accepted.