JUDGMENT MIAN MUHAMMAD JANAHGIER, JUDICIAL MEMBER-This appeal is directed against Order- in-Original No. 654 of 2004 passed by Additional Collector (Adjudication), Faisalabad, dated 30.7.2004 whereby Toyota Corola Car bearing Registration No. RIU-6259 was confiscated under Section 156(1)/89/90 of the Customs Act, 1969 read with S.R.O. 374(l)/2002, dated 15.6.2002.
2. Some relevant facts for the disposal of this appeal are that on the basis of an information on 18.3.2004 at about 5.15 p.m. In the area Abdullah Pur, Faisalabad the staff of Customs Intelligence intercepted the above- mentioned vehicle driven by Mr. Hassan Raza appellant who failed to produce the legal import documents. He informed that Arshad Abbas appellant is owner of the vehicle. On the next date Arshad Abbad appeared before the Customs Authorities and produced the original certificate of registration but he also failed to produce the legal import document, however he requested that the customs authority may have a contact with the Excise and Taxation Department, consequently on the same day a letter was written to the Motor Vehicle Registration Authority, Rawalpindi for supply of document against which the vehicle was registered. The copy of letter, dated 19.3.2004 was sent to the office of the Deputy Director Intelligence and Investigation (Customs Excise), Rawalpindi who vide his letter, dated 24.3.2004 provided copy of Form-F and bill of entry in respect of vehicle No. RIU-6259 and RIX 890 obtained from Excise and Taxation Officer, Rawalpindi and, thereafter, the bill of entry was sent to the concerned officer Customs House, Karachi; for its verification.
And, thereafter, since the Chasis No. Was found tampered, therefore, the report of Forensic Science Laboratory, Islamabad was sought. The gist of the report was as under:-- "The chemical treatment of the chassis number of the above-cited vehicle as subject has revealed that its full panel chassis sheet bearing Number EE80- 5071720 welded and refitted on the chassis place."
3. The customs authority in view of above report found that the vehicle in question is smuggled item, consequently notices under Section 171 of the Customs Act, 1969 were sent and the appellants were also served with show-cause notices and after hearing the parties the matter was adjudicated by Additional Collector, Faisalabad. The finding of the Additional Collector was as under:-- "The case of prosecution is that the seized vehicle is smuggled one which have been brought into the country without payment of any taxes and that the respondent does not possess any valid import/registration documents in respect of the seized vehicle and that the chassis plate of the vehicle has been tampered. Against the allegations of the prosecution, the respondent contended that ETO, Rawalpindi has confirmed that registration of the seized vehicle and that welding and refitting of chassis sheet was due to the accident occurred on 15.5.2001 and report of which was lodged with Police Station Peer Mahal, District T.T.Singh. As regards the argument of the respondent that ETO, Rawalpindi has confirmed registration of the vehicle it is not proved from the record, in fact the seizing agency sent a letter to MRA, Rawalpindi for supply of documents against which the vehicle was registered but no response was ever received from MRA, Rawalpindi and sent the same to Customs House, Karachi for verification which has not been verified so far. The photocopy of unauthentic registration certificate produced before me does not give any information regarding the chassis number of the seized vehicle and the relevant column is left blank which is enough to establish that seized vehicle is not backed up by any import or valid registration documents. Since the chassis plate of the vehicle in question has also been confirmed to be welded and refitted' by FSL, Islamabad, their remains no doubt that a smuggled vehicle has been made according to the particulars of some legal import documents. As such the charges as stated in the show cause stand established." Hence this appeal.
4.I have heard both the parties and have gone through the relevant record placed before me.
5 The learned counsel for the appellant argued that vehicle in question met an accident in the area of Police Station, Pir Mehal District Toba Tek Singh and after the accident the vehicle was got repaired as its full front portion' was damaged and its chassis number after welding was refitted; that there is nothing material on the record to believe that the vehicle in question had any other chassis number; that the documents on the record proved this fact that the vehicle was lawfully owned by the appellant as its registration was in the name of the appellant; that the appellant cannot be blamed with the tampering of the Chassis number; that the vehicle in question has been assembled in Pakistan therefore, its chassis number have been punched manually by local artisans therefore much importance attached to the chassis number is unsafe; that as a consequence of correspondence between departments the document of import came on the record but the bill of entry despite onward transmission to the competent officer of Customs House, Karachi, it could not be verified and that in view of the material on the record it is obvious that vehicle in question was seized under suspicion therefore, at last an illegal order was passed by respondent which is liable to be set aside.
On the other hand Mr. Gulzar Ali, S.I.O. Customs Intelligence, Faisalabad opposed the arguments and submitted that the bill of entry having different model is irrelevant because the model of the car as mentioned in the bill of entry is 1987 while the seized car is model of 1985 and he submitted that the order passed by the respondent is in accordance with law as such it calls for no interference.
6. The point for examination is as to which can be the best evidence to determine that the vehicle is a foreign item. If there is no such determination the vehicle cannot be declared as smuggled item. There are always many things/parts in vehicle, which establish that the vehicle is foreign item.
If the documents of import are not produced at the spot or during investigation, it is established that the vehicle in question being foreign item is a smuggled good which has been brought from a foreign country in any way or through any route, therefore, in order to establish a thing to be legally imported the documents of import are the best evidence.
If there is a situation that the document of import is not available from any office, then the report of Forensic Science Laboratory car be sought which would be secondary evidence to assist in the affair and tampering in a vehicle would be a subject of local Police for criminal action.
Meaning thereby the document of import after complete verification is a primary evidence which should be obtained at the stage of investigation and the report of expert Forensic Science Laboratory would be secondary evidence or an additional piece of evidence.
7. it would look in many cases dealt by customs officers and authorities; that the document of import is not verified and another way to wind up the matter is selected by obtaining the report of the Forensic Science Laboratory, it appears in this case that chassis number before and after chemical treatment was EE80-5071720 in the report of the Forensic Science Laboratory and the same chassis number was in the attested photocopy of the bill of entry. The model of the car in this document was 1987 and in Form-F, an attested document (photocopy) the number of the car was mentioned as RIU-6251. Any how the difference detected by the investigation staff as indicated in parawise comments is that the model of the car was 1985.
The question would arise as to whether this difference on the record if so, was sufficient to proceed in this matter by treating the vehicle in question as the smuggled good. Certainly this discrepancy was not sufficient because this discrepancy itself was not a best evidence. Even otherwise sufficient corroboration to claim of the appellant had come on the record on the strength of document as discussed above.
8. The question would arise as to what was the proper course in such situation. The impugned order would itself speak that the photocopy of bill of entry sent to Karachi could not be verified and the Additional Collector adjudicated the matter in haste because he himself was fully competent to have conducted an , enquiry in detail in the matter. Meaning thereby this case was disposed of without bringing on record the best evidence for any penal action.
9. As a consequence of it order dated 7.7.2004 passed by Additional Collector is set aside and the case is Remanded back to Additional Collector (Adjudication), Faisalabad to dispose of this matter afresh in the light of observation as made above, after summoning the parties. The appeal is disposed of accordingly..