' ROOH-UL-AMIN KHAN, J.---The Additional Director Intelligence and Investigation-FBR Regional Office, Peshawar has filed this Custom Reference to seek answer to the following questions of law:- -
(A) Whether both the learned lower forums have not fallen into error by releasing the vehicle having a tampered chassis number?
(B) Whether the law on the subject has rightly been interpreted by both the learned for a by releasing a tempered vehicle?
(C) Whether the FSL reports of the vehicle does not clearly suggest that the vehicle is tampered one hence, liable to be confiscated in favour of state?
(D) Whether overlapping does not come in the definitiot of tampering under the law?
(E) Whether the provision of S.R.O. 568(1)/2008 dated 11th June, 2008 has not been wrongly applied to the respondent case?
(F) Whether the benefit of S.R.O. 568(1)/2008 dated 11th June, 2008 is applicable to tampered vehicle?
(G) Whether the person who does not come with clean hand before the authority is liable to any leniency under the law?
(H) Whether the learned Appellate Tribunal has applied its independent judicious mind to the law point involved in the case?
2. Brief but relevant facts of the case are that the Assistant Director Customs, Intelligence and Investigation-FBR, Peshawar intercepted a Hino Truck having Chassis No, FD3HDA-50852, Engine No, HO7DA96638 Model 1993. On demand, the respondent failed to produce any proof with regard to its lawful possession of the said vehicle and the Intelligence Staff brought it to his office for necessary verification and seizure, which was sent to the Forensic Science Laboratory, Peshawar for examination, who reported that the chassis number of the vehicle has been tampered with, thus, it was seized. Thereafter, seizure case No,123 of 2008 dated 29-6-2008, was submitted before the Deputy Collector for adjudication, who after hearing both the parties, out rightly confiscated the vehicle vide Order No, 301 of 2008 dated 17-10-2008.
3. Aggrieved with the aforesaid Order-in-Original, respondent filed an appeal before the Collector (Appeal), who conducted another exanimation of the vehicle through FSL Islamabad and thereafter released the vehicle to the respondent on payment of duty and taxes plus 30% redemption fine vide Order-in-Appeal No, 91 of 2009 dated 2-2-2009.
4. The petitioner being aggrieved filed an appeal against the aforesaid order-in-appeal before the learned Appellate Tribunal, who vide judgment dated 7-9-2009 dismissed the same. Hence this Customs Reference.
5. Yesterday, this case was fixed before us and at the very outset, the learned counsel for the respondent raised a preliminary objection regarding the maintainability of the instant Customs Reference on the ground that it has been filed by Additional Director Intelligence and Investigation- FBR, Regional Office, Peshawar, who also has signed the Reference and Vakalatnama; while section 196 of the Customs Act, 1969 provides that the reference before the High Court may be preferred by the Collector and the Additional Director of Intelligence and Investigation is not competent to file the instant reference. Learned counsel for the petitioner requests for adjournment to answer the preliminary objection which was adjourned for today i,e, 3-10-2012.
6. Today, the learned counsel for the petitioner submitted that the instant Reference has been filed under section 196 of the Customs Act, 1969 aid the Director of Intelligence and Investigation is authorized and competent to file it. He submitted that necessary amendment to this effect has been impregnated in the section 196 of the Customs Act, 1969 in the year, 2007 vide Finance Act, 2007 reported as PTCL, 2007 SB 274.
7. The amended section 196 of the Customs Act, 1969 is reproduced herein which reads as under:-- "196. Reference to High Court.---(1) Within ninety days of the date on which the aggrieved person or Collector or Director of Intelligence and Investigation, as the case may be, was served with order of the Appellate Tribunal under subsection (3) of section 194B, the aggrieved person or any officer of Customs not below the rank of an Additional Collector. Or Additional Director, authorized by the Collector or Director in writing, may prefer an application, in the prescribed form along with a statement of the case, to the High Court, stating any question of law arising of such order".
8. The word "Director Intelligence and Investigation" have been inserted in the Section (ibid) through amendment dated 30-6-2007. The section further disclosed that any officer of Customs not below the rank of an Additional Collector or Additional Director, authorized by the Collector, may prefer an application in the prescribed form along with a statement of the case to the High Court. Learned counsel for the petitioner produced an order dated 6-12-2007 whereby the Additional Director Intelligence and Investigation-FBR, Regional Office, Peshawar has been authorized for filing Reference before this Court.
9. When the learned counsel for the respondent was confronted with the above said situation, he candidly conceded and withdrew from his preliminary objection.
10. We have heard the learned counsel for the parties and perused the record, which would reveal that Hino Truck having Chassis No,FD3HGA was seized by the Intelligence and Investigation Staff of the Customs Authority. At initial stage, owner admitted in his statement that he did not possess legal document for import of the subject vehicle and disclosed that the subject vehicle had not been registered with any Motor Registration Authority Office. At the time of seizure, the owner of the vehicle submitted an affidavit to the effect that the vehicle is neither stolen nor its chassis number is tampered with.
11. After seizure, the vehicle was examined through Laboratory and the FSL report bearing No, 21162 dated 5-7-2008 was received to the Customs Authority with the following findings:-- No. S Before chemical treatment No. S after chemical treatment Chassis No. FD3HLA-11830 Chassis No. FD3HLA-11830 Overlapping chassis frame No. FD3GA- 50852Chassis Frame measuring 5-1/2X1"
' OPINION: ' Chemical examination of the chassis number of the vehicle in question revealed that:- ' In the overlapping chassis frame a welded and refitted piece measuring 5-1/2 X 1" bears the following number "FDEHGA50852"
12. In consequence of the above finding of the Forensic Science Laboratory, the respondent was served with a show cause notice in terms of section 180 of the Customs Act, 1969 which was duly replied. After hearing the parties, the Deputy Collector out rightly confiscated the vehicle against which the respondent filed an appeal before the Collector which was accepted and the seized/confiscated vehicle was allowed to be released to the bona fide owner on payment of redemption fine equal to 30% of the Customs value of the vehicle in addition of the duty/taxes leveliable thereon. The petitioner challenged the above said order before the Customs, Federal Excise and Sales Tax Appellate Tribunal, Peshawar Bench, which also bore no fruit.
13. The respondent seeks the release of vehicle on the strength of S.R.O. 487(1)/2007 dated 9-6- 2007 whereby it was provided that all the vehicles imported in violation of the import policy order in force and for which IGMs had been filed on or before the 31st May, 2008 shall be allowed/released on payment of leviable amount of duties and taxes in addition to redemption fine which shall be equal to 30% of the CIF value of each vehicle, provided that the customs duty, taxes, fine and penalty etc. Levied thereon are paid on or before the 30th June, 2008. The above said S.R.O. Was further amended vide S.R.O. 568(I)/2008, dated 11-6-2008 which reads as under:-- "The smuggled vehicles, other than having tampered engine or chassis numbers, which had been seized or confiscated on or before the 31st May, 2008, shall also be allowed release on payment of leviable amount of duties and taxes in addition to redemption fine which shall be equal to thirty per cent of the CIF value thereof, provided that the customs-duty, taxes, fine and penalty etc. So levied thereon are paid on or before the 30th June, 2008". (underline supplied)
14. The above said S.R.O. Clearly indicates that all the vehicles seized or confiscated on or before 31st May, 2008 shall also be allowed released on payment of leviable amount of duty and taxes etc. Except those having a tampered engine or chassis number. The vehicle was examined by the Chemical Examiner at FSL Peshawar and he had submitted report that in the overlapping chassis frame a welded and refitted piece measuring 5-1/2 X 1" bears the following number "FDEHGA- 50852". The vehicle was also examined from the FSL Islamabad which reveals that chassis number of the truck in question is manually punched. The above said report of chemical examiner clearly indicates that at the time of seizure, the chassis number of the vehicle was FD3HZA-50852, which was chemically examined by the FSL, Peshawar who confirmed that the original chassis number is FD3HLA1180 and a piece of 5-1/2 x 1" bearing No, FD3HZA-50852 refitted/ welded on the site of original chassis frame. The rewelded on the site of original' chassis frame clearly indicates that the chassis number was not in its original condition. This fact was further confirmed from the subsequent report obtained from the FSL, Islamabad which reveals that the present chassis number is manually punched.
15. In view of the above facts and overall circumstances of the case and FSL report, the petitioner has proved the tampering in chassis number of the vehicle. The learned Collector and Member Judicial respectively have not appreciated the chemical examiner reports furnished by two different laboratories in its true perspective and have arrived at an erroneous conclusion:
16. In wake of the above discussion, this Customs Reference is accepted and the judgment dated 7-9-2009 of the learned Appellate Tribunal in Appeal No, Cus.131/PB/2009 and judgment dated 2- 2-2009 in Order-in-Appeal No, 91 of 2009 passed by the learned Collector (Appeal) are set aside and the order dated 17-10-2008 of learned Deputy Collector is restored.