DR. RIAZ MEHMOOD, MEMBER (JUDICIAL).-(1). The appellant has assailed, in this appeal, the Order- in-Appeal No. 13/2008, dated 29.02.2008, whereby the learned Collector (Appeals), the respondent No. 3, had upheld the order of the learned Deputy Collector (Adjudication)' passed vide Order-in- Original No. 17/2007, dated 08.05.2007, vide which the vehicle of the appellant had been confiscated.
2. The appellant has pleaded in the memo of appeal that on 14.02.2007, the staff of the respondent No. 4, intercepted the Toyota Prado Jeep, bearing registration No. LWC-1835, which was driven by the appellant and seized on the allegation that the appellant had failed to produce the documents showing legal import and lawful possession of the vehicle. A show cause notice was issued to the appellant, wherein it was alleged that the appellant had failed to produce the legal documents regarding the import as well as legal possession of the said vehicle. It was further alleged that on physical examination, it was observed that the chassis number was not present on its genuine place. The appellant appeared before the respondent No. 2 and categorically denied the allegation with the request that the vehicle in question had been retained in Pakistan lawfully and there was no justification to seize the vehicle and there was no tangible evidence pointed out in the show cause notice. Therefore the vehicle be released. The respondent No. 2, without applying his mind judiciously and considering the submissions of the appellant confiscated the seized vehicle vide Order-in-Original No. ,17/2007. The appellant filed an appeal before the learned Collector (Appeals), the respondent No. 4, who without appreciation of facts of the case and law points involved therein passed the impugned order in appeal. Both the Order-in-Original and order-in- appeal are based on presumptions and were not sustainable in the eye of law. At the time of registration all the import documents were submitted to the Motor Registration Authority and after due verification they had registered the vehicle. Initially, the vehicle is registered provisionally and after proper scrutiny and verification of documents the vehicle is registered on regular basis. The same was done in the case of the appellant. The appellant had handed over copy of the registration book to the detecting agency. The seizure memo is silent about any tempering of the chassis. The Forensic Science Laboratory report had not been properly exhibited nor the expert was cross examined. It is submitted that under section 510 Cr.P.C, the report of the chemical examiner is per se admissible, but not under the self contained Customs Act, 1969. The report had to be proved under the Qanoon-e-Shahadat Order, 1984 as held by the Hon'ble Peshawar High Court in FAO 170, 171, 172/99 and 89 and 93/2000, dated 21.09.2000 which had been upheld by the Hon'ble Supreme Court of Pakistan also. The chassis frame had been examined physically at the time of seizure and no allegation of tempering was noticed at that time and noted in the notice issued under section 171 of the Customs Act, 1969. In the FSL report, it was observed that the chassis number before and after chemical treatment was the same i.e, FJ-40-038948, but it had been affixed on another place and had manually been changed. It has further been urged in the memo of appeal that in fact one Muhammad Akbar had purchased a jeep with this chassis number from the Army Depot Golra through Voucher No. S&D/00199/P, dated 21.04.1999. It was subsequently confirmed by the Central M.T. And Stores Department, Golra Road Rawalpindi vide their letter No. 1917/S&D, dated 06.01.2006, addressed to the Superintendent, Anti Smuggling Organization, Faisalabad. Tahir Yousaf, had purchased the vehicle from Muhammad Akbar and applied for registration and the vehicle was registered as LWC-1835. The original body of the jeep had got rusted and had necessarily to be changed for which conversion charged of Rs. 3,000/- were paid to the Motor Registration Authority and sanction was endorsed on the registration book. The any authorities in their letter No. 1917/S&D, dated 04.04.2007 had clearly replied that the chassis number had been re-punched in the base workshop in the light of G.H.Q, letter No. 1787/1469/ME-18, dated 16.12.2004, in as much as the original chassis number was no more readable. It has been prayed that the impugned order-in-appeal as also the Order-in- Original be set aside and the vehicle be released in favour of the appellant.
3. The department had furnished comments before the learned Collector (Appeals). It was submitted that the Order-in-Original 17/2007 had been passed after proper application of law points and the allegation against the appellant were based on the evidence and report of the FSL.
The photo copy of the registration book presented at the time of interception was fake and bogus and related to another vehicle i.e. Mini truck/deliver van as per Form-F and registration book respectively. The chassis number had been tried to be made the same according to the registration book. The lab test had been done in the presence of the owner. The lab report was duly signed by the Inspect/Expert, photographer and the chemical examiner. It had been found at the time of interception that the chassis number had been tempered and it was mentioned in the recovery memo. The original place of the chassis number had been grinded so badly that no digit could be deciphered and chassis number FJ-40-038948, was found on another place which was manually punched. It was admitted that the vehicle was purchased by one Muhammad Akbar through any auction vide voucher No. S&D/00199/P, dated 21.04.1999, but the vehicle in question was another one having the different description, shape, model and seating capacity. Form-F (application for registration) was prepared in the name of Muhammad Akbar original purchaser and Tahir Yousaf in the same date i.e. 18.07.1986 and the certificate of registration showed the date of registration as 01.02.2006. The registration documents were not relevant to the seized vehicle.
4. Arguments were heard. The learned counsel but pressed the points raised in the memo of appeal. He further submitted that the notice of seizure under section 171 of the Customs Act, 1969 (Annexure-B/2) could be seen on page-42 of the file. The only allegation contained in it was that the customs duty had not been paid and the import documents had not been presented and thereafter the allegation of tempering chassis number was added by way of improvement in the recovery memo (Annexure-B/1). This improvement could not be made. The learned counsel submitted that the Customs, Federal Excise and Sales Tax Appellate Tribunal in a similar circumstances had released the vehicle and cited PTCL 2003 CL 627 in this respect. He further placed reliance on the judgment of the Hon'ble Peshawar High Court reported as PTCL 2006 CL 24 passed on SAO 52/2002. The learned counsel further argued that if any ground for seizure had been mentioned in the notice under section 171 of the Act, the adjudicating officer could not subsequently pass an order under section 168 of the Act an another ground. He cited a decision of the Hon'ble Sind High Court reported as 20Q4 PTD 369 Karachi in this respect.
5. The representative of the department defended the impugned orders.
6. I have carefully gone through the record in the light of the arguments advanced at the bar. The appeal was apparently time barred but the appellant has placed on record copy of the registered cover OPSS 1998 which was received by him on 05.04.2008 and the appeal presented on 26.05.2008 was within time. The Voucher No. S&D/00199/P, dated 21.04.1999, issued by the Army Depot Golra (Annexure-D/1) is very important. Jeep FJ-40-RKC, chassis number 038948, engine number 0298389, the year of manufacturing as 1979 had been sold to Muhammad Akbar. This document is not denied even by the respondents. The Central M.T.Stores and Depot, Golra Road, Rawalpindi had confirmed the sale through letter No. 1917/S&D, dated 06.01.2006 (Annexure-D/2).
Vide report of the FSL, Islamabad (Annexure-C), the vehicle was LWC-1835, type of vehicle Toyota Prado and chassis number before and after chemical treatment remained the same as FJ-40- 038948. The lab however added that the chassis place had been badly grinded and the chassis number had been punched manually at another place. The letter No. 1917/S&D, dated 04.04.2007 written by the Central M.T. And Stores Depot, Golra Road, Rawalpindi to the Superintendent Customs, Anti Smuggling Organization, Faisalabad in response to the later query is very important and may be reproduced as below:-- "Your letter No. C. No. 66, dated 24 March, 2007 refers.
It is confirmed/verified that issue Voucher No. S&D/00199/P, dated 21st April, 1999 and certificate bearing No. 0211/17/Exec, dated 24 August 1999 was issued by this depot. Contents of issue voucher has already been verified to Motor Registering Authority Lahore vide this depot letter No. 1917/S&D, dated 06 January, 2006.
It is further informed that tempering/re-punching is being carried out by Base Workshop as and when original chassis number is not readable in light of GHQ letter No. 1787/1469/ME-18, dated 16 December, 2004."
7. The instructions of the GHQ for re-engraving the number in the Central Workshop, EME are contained in their Letter No. 8280/4099/)S-3 MT, dated 25.08.2004, copy of which has been placed on record as Annexure-F/2. There is, therefore, no denying of the fact that chassis number of the seized Vehicle No. LWC- 1835 was FJ-40, Toyota 038948 and engine number 0298389. Muhammad Akbar of Rawalpindi through Muhammad Tariq s/o Muhammad Latif, Fshan Park, Lahore had sold this vehicle to Tahir Yousaf, H. No. 69, Mohallah Karim Park, Ravi Road, Lahore through a stamp paper No. 46419, dated 25.01.2006. It appears that Muhammad Akbar had retained his purchased vehicle with him and thereafter sold the same through Muhammad Tariq to Tahir Yousaf and it was Tahir Yousaf who got it registered on 01.02.2006 in the name of Muhammad Akbar. The conversion charges of Rs. 3,000/- had been paid to the Motor Registration Authority under the head 0281 and the challan form had been placed on record as Annexure-E/2. The any authorities vide their Letter No. SN/0211/17/E&EC, dated 24.08.1999 had confirmed that vehicle BE 831349 chassis number 038948 had been auctioned by the depot on 12,04.1999 in favour of Muhammad Akbar son of Muhammad Islam, NIC No. 211-57-235994, resident of 215-A, New Mohanpura Scheme, Rawalpindi through Voucher No. S&D/00199/P, dated 21.04.1999 and tempering of the old chassis number had occurred during the process of repair by the Base Workshop. Thereafter, vide the endorsement on the registration book, the vehicle was transferred by Tahir Yousaf to Muhammad Nawaz, the present appellant. Vide Form-F, the seating capacity had been enhanced from 3 to 5 with the permission of Motor Registration Authority, Lahore dated 11.03.2006. If a brand new vehicle without any alteration or modification is seized from interior land in Pakistan and no document of import is produced the vehicle could be said as smuggled one, but if a chassis number, engine number had duly been auctioned by the any authorities as reportedly conveyed by them and later on some alteration was made the process could not come within the ambit of smuggling. Two government agencies i.e. Army Depot, Golra Road, Rawalpindi and Motor Registration Authority were vitally involved in the process of sale, registration and transformation and the allegation of smuggling could not therefore, be sustained. The appellant had successfully produced the evidence as to how the chassis frame with the same number had emanated from the any authorities and was subsequently transferred to Tahir Yousaf and then to Muhammad Nawaz and the conversion charges were paid and the seating capacity was enhanced. The vehicle was as old as of 1979 model. Any assemblage of spare parts may be of later model could not constitute smuggling. The law laid down by the Hon'ble Peshawar High Court in CM. No. 74/03 in SAO No. 52/02 and the aforementioned case law cited by the learned counsel FAO 170, 171, 172/99 and 89 and 93/00, dated 21.09.2000 is fully attracted. The appeal is, therefore, accepted in as much as the Order-in- Original and order-in-appeal are not sustainable in the eye of law and are, therefore, set aside. It is ordered that the vehicle be released unconditionally to its lawful owner.