MR. SARFRAZ AHMAD KHAN, MEMBER (TECHNICAL).--(l). This appeal is directed against Order in Original No. 366/04 dated 21.06.2004 passed by Collector of Customs, Sales Tax & Central Excise (Adjudication), Faisalabad camp at Multan, whereunder he ordered outright confiscation of vehicle bearing Registration No. CB-6213 Karachi (incorrectly shown in the impugned order as CB-6216- Karachi). The vehicle in question was intercepted by staff of Customs Anti-Smuggling Organization, Multan on 30.01.2004 at Nawan Shehr Chowk, Multan when Muhammad Amjad S/o Haji Gos Buksh, the appellant was on wheels and statedly, on the failure of the appellant to produce documents regarding legal import/lawful possession, the vehicle in question was seized. On the report of the detecting agency, a show cause notice dated 25.03.2004 was issued proposing confiscation of the vehicle in question under the relevant provisions of Customs Act, 1969 and Imports & Exports (Control) Act, 1950, as specified therein. Main charge against the appellant (then respondent was that a Toyota Hilux Model 1989 was registered under Registration No. CB-6213 (incorrectly shown as CB-6216 in the show cause notice as well as in the impugned order) while the vehicle was Toyota Hiace Surf 1991 Model since its chassis No. LN106-0019936 was of Toyota Hilux Pickup and not of Toyota Hilux Surf. The detecting agency reported that a Toyota Hilux Surf Model 1991 bearing chassis No. LN 106- GO 19936 was smuggled and subsequently had been "shifted and mounted on the chassis frame of deteriorated Toyota Hilux Pickup to camouflage the same under the cover of its registration documents." The adjudication proceedings culminated in passing of the impugned order.
2. The case was heard on different dates. Following interim order was passed during the hearing held on 28.09.2004:- "The learned counsel stated that identical issue has been decided by the Tribunal vide its judgment dated 30.08.2004 and this case may also be decided accordingly. He further contended that section 33 of Motor Vehicles Ordinance, 1965 required that if a motor vehicle is so altered that the particulars contained in the certificate of registration no longer remain accurate the owner of the vehicle was required to report the alteration to the Registering Authority within 14 days. According to him, the alteration done was duly intimated to Motor Registering Authority Karachi which charged additional charges and those documents were available in the original file of Motor Registering Authority Karachi, copies of which were also available with the appellant. According to him, the charge of smuggling could not be framed against the appellant in the light of the aforementioned judgment dated 30.08.2004 of the Tribunal read with the provisions of section 33 of Motor Vehicles Ordinance 1965 and the intimation already given to Motor Registering Authority Karachi. He also referred to different Broachers of Toyota Motors and others through which it had been indicated that body of the vehicles could be changed on payment of specific charges.
2. The learned SDR requested for short adjournment since no one had entered appearance from the respondent Collectorate. Case is re-listed for 19.10.2004. The respondent side to give its arguments on the aforementioned contentions of the learned counsel.
Sd/- Sd/- Member (J.) Member (T.)"
3. During hearing held on 19.10.2004, the Superintendent appearing on behalf of the respondent contended that admittedly, chassis number LN106-0019936 was a Toyota Hilux Pickup and it was not the chassis number of Toyota Hilux Surf. According to him, this proved that complete body alongwith engine of a smuggled Toyota Surf had been used for mounting it on an old chassis frame bearing chassis No. LN 106-0019936 of Toyota Hilux Pickup. According to him, no proof was provided by the appellant regarding alteration in the body of the vehicle and the receipts of different mechanics referred to in the written memo of appeal were neither produced before the investigating officer and nor before the adjudicating officer. Therefore, he doubted the genuineness of those receipts.
4. The learned counsel re-iterated his earlier contentions as already re-produced in the interim order dated 28.09.2004.
5. We have heard contentions of both the sides and perused the appeal file available before us.
Identical cases were decided earlier by this Bench vide its consolidated judgment dated 30.08.2004 in Appeal No. 84 and 244/LB/2004 (titled Muhammad Akmal Shahid and Faruq Ahmad Khokhar). Relevant portion of the said judgment, which is valid even for this case is re-produced below:- "The respondent side (the detecting agency) was required to submit proper evidence that-(i) the chassis frames in respect of both the cases were used for placing the bodies of so and so vehicles, and actually belonged to vehicles having such and such chassis number; (ii) the charge of smuggling could be levied only if the controversial bodies/ other parts were of foreign origin and belonged to such and such other vehicle and that too needed to be established through evidence.
5. A perusal of the documents available on the appeal files revealed that the charges/investigation report of the detecting agency were adopted by the adjudicating officer as such without asking the detecting agency to prove their investigations through evidence. In absence of any sort of evidence to substantiate that the bodies/other parts, used on the genuinely imported chassis frames were smuggled, the charge could not be taken to have got established. We find that no such evidence has been placed on record. Another gross deficiency in the impugned orders was that despite admission that chassis frames were already duty paid, total value of the vehicles was adopted taking it to have been smuggled despite the fact that chassis frame carrying much higher value than the body were admittedly already duty/taxes paid. Without having first established through reasonable evidence regarding replacement of body/parts etc., with the smuggled goods through evidence to a reasonable extent, the appellants could not be punished.
In absence of any evidence substantiating the charge of smuggling against the appellants, the matter did not fall in the jurisdiction of the customs authorities under the Customs Act, 1969 even if bodies/parts of those vehicles were replaced. That action in itself could not be called an act of smuggling."
6. Even otherwise in terms of section 33 of Motor Vehicles Ordinance, 1965, when such an alteration is made in a vehicle that particulars contained in the certificate of registration no longer remain accurate the owner of the vehicle has to intimitate the same to the Motor Registering Authority within 14 days alongwith certificate of registration of the vehicle accompanied by the prescribed fee and the Motor Vehicle Registering Authority would enter the alteration in the registration documents. Thus the respondent agency had no jurisdiction under the Customs Act, 1969 to impound the vehicle on the basis of alteration done in terms of section 33 of the Motor Vehicles Ordinance, 1965.
7. In view of what has been discussed above, the impugned order is set aside and the appeal is accepted. The vehicle in question is ordered to be released to the appellant forthwith.