Syed Hamid All Shah, J.--Questions framed and proposed for consideration of this Court, arising out of judgment of the Tribunal, in Custom Reference Applications No, 4-2007 and No, 7-2007, are same, therefore, the same are disposed of through a common judgment.
2. The vehicle of the petitioner (in C.R.A No, 7-2007) is Mitsubishi Pajero Intercooler Turbo, Low Roof Jeep Model 1991 and particulars entered in the registration book related to Mitsubishi Pajero Jeep.
Custom Staff of Anti-Smuggling intercepted the vehicle and on physical examination found it's frame as cut and welded. Matter was referred to the Laboratory for examination. Forensic Science Laboratory, Islamabad, after test, reported as under:-- "(i) The chassis number is neither grinded nor tampered.
(ii) The chassis number is not self-punched. Formation and alignment of the digits is normal. The chassis frame is found cut and welded."
3. Another Laboratory Test from Forensic Science Laboratory, Islamabad was carried where again it was affirmed that chassis frame has been cut and welded abnormally. The applicant in response to the show cause notice submitted his reply and Additional Collector, vide Order-in-Original No, 5- 2006 dated 19.1.2006 ordered for outright confiscation. The applicant's appeal failed and thereafter the applicant approached the Tribunal, against the order of the Collector of Appeals dated 6.6.2005. Learned Tribunal dismissed the appeal vide order dated 22.3.2006, hence this C.R.A.
4. The applicant in C.R.A. No, 4-2007 owns Hino Truck having Registration No, 0441 (Sukkar). The vehicle was intercepted and on physical examination, it was found that it's chassis number has been tampered and self punched. The vehicle was seized. The examination of Forensic Science Laboratory Islamabad reveals that chasis number, before chemical treatment of the vehicle, was FF 173 KA-158447 while after the chemical treatment it was changed to FF 175K-127914. Deputy Collector (Adjudication), Multan vide order in Original No, 913/2002 dated 21.10.2002 found the vehicle as smuggled and orders for it's outright confiscation. Collector Appeals affirmed the Order- in-Original and the appeal before the learned Tribunal also met the fate of dismissal. These C.R.A. have been filed on various questions including Questions No, 1 & 2, which are reproduced below for ready reference:-- "(i) Whether the learned Appellate Tribunal erred in law by holding that applicant's vehicle may not be released against duty & taxes?
(ii) Whether the learned Appellate Tribunal has fallen in error that he cannot release tampered vehicles against duty & taxes under Section 181 of the Customs Act, 1969?"
5. It is contended by learned counsel for the applicants that the applicants are bona fide purchasers and the vehicles in questions and vehicles were not smuggled or imported by them.
The respondents have released, with frequent intervals, various vehicles in identical and similar circumstances, on payment of duties and taxed. It has been argued that even the Appellate Tribunal has passed order for the release of the vehicles against custom duty and referred to order dated 16.5.2002 of the Appellate Tribunal where 48 appeals were decided, allowing the applicants to get their vehicles released on the basis of SRO No, 1374(1)/98 dated 17.12.1998 on payment of duties. Learned counsel has emphasized that according to SRO No, 179(1)/2006 dated 2.3.2006 smuggled vehicles with non-tampered chassis frame are subject to release on payment of 30% of the duties and taxes. Cases of "Abu Bakar Siddique and others Vs. Collector of Customs, Lahore and another" (2004 PTD 2187) and 'Messrs Imtiaz Ahmad Vs. Collector Customs, Peshawar" (2007 PTD 789) were referred in support of the contentions made on behalf of the petitioners.
6. Learned counsel for the respondents, on the other hand, has fully supported the impugned judgment and submitted that the cases of import of smuggled vehicles or vehicles imported in violation of the trade policy can be released on payment of taxes but the cases where owner of vehicle has committed fraud and forgery and tampered the chassis number or has removed the chassis number through cut and welding is not entitled to such relief. Learned counsel has relied upon SRO No, 574(1)/2005 dated 6.6.2005 where release of vehicle on payment of fine, in lieu of confiscation, is not available under various clauses of this notification. Vehicles imported in violation of import, trade and procedure order and in violation of import of vehicle are mentioned at Serial No, (vii) of Clause-(a) of the said notification.
7. Heard learned counsel for the parties and perused the record.
8. Forensic Science Laboratory, where the vehicles were examined, it was found that chassis frame of vehicle in CRA 702/2007 is cut and welded while tampering of chassis number through Chemical treatment was reported regarding vehicle in C.R.A. No, 4-07. The applicants herein have emphasized that their vehicles are required to be released 'on the basis of principle of equality, on payment of custom duties and fines. As other vehicles have been released on the basis of payment of duties and fine. In these reference applications, the questions involved are mixed questions of facts and law, which cannot be determined in these proceedings. The fact remains that the applicants have been plying the vehicles illegally and have manoeuvered to change their chassis number. They have either done the same by themselves or by a person from whom they have purchased these vehicles. In the former case they are guilty of tax fraud while in the later case they are guilty of negligence as they have not taken due care at the time of purchase of these vehicles.
9. Option of fine in lieu of confiscation, is not available to the applicants, therefore, the same cannot be extended. The cases referred to by learned counsel for the applicants are on different facts and circumstances. Thus they are not applicable to the controversy in hand. The vehicles, which are smuggled with tampered chassis frame, are not only source of loss to the National Exchequer but are security threat as well. We, therefore, are inclined to validate the acts, which are immoral, detrimental to the security and result into loss to the National Exchequer.
10.In view of our above discussion, we answer to the proposed Question No, 1 in negative while the other questions do not require consideration. This reference application is, therefore, dismissed.