SYED SARDAR HUSSAIN SHAH, MEMBER (JUDICIAL). This appeal has been filed by Din Mamamin son of Said Rehman and another (herein after called appellants) against the Order-in-Appeal No.482 of 2010, dated 09.10.2010, passed by the Collector of Customs (Appeals), Rawalpindi, Camp Office, Jamrud Road, Custom House, Peshawar , whereby he dismissed the appeal of the appellant against the Order-in-Original No.133 of 2010, dated 08.06.2010 of the Additional Collector-II of Customs, Model Customs Collectorate, Custom House, Jamrud Road, Peshawar .
2. Briefly stated facts of the case are that an 08.01.2010 at 1200 hours, the staff of the Customs on the information that a foreign origin Hino Chassis Frame bearing Chassis No.FD3HDA-50953, Engine No.HO7DA-102638 of Model 1993 (as per documents) Model 1991 (as per seat belt) would be smuggled from Miran Shah to Peshawar was intercepted near Toll Plaza Kohat. On demand, the appellants produced an NOC issued by the Assistant Collector Customs Division, Kohat (vide C.No.V -cus(14) 188/2008/6319, dated 04.09.2008), but the same being found suspicious, the vehicle was detained under Section 17 of the Customs Act, 1969 for necessary verifications.
3. The vehicle was subsequently also examined through FSL, Peshawar . The FSL authorities (vide No. 2284, dated 11.02.2010) intimated as follows:- Before Chemical treatment After Chemical Treatment Chassis No. Chassis No. FD3HDA-50963 Welded and refitted Chassis frame piece Opinion:- Chemical examination of the chassis number of the vehicle in question revealed that:- The Original chassis frame has been cut at the site of the Chassis number and another Chassis frame piece measuring 5.5"x5' has been welded and refitted which bears the following number:- "FD3HDA-50963"
4. In view of the above FSL report the Hino Chassis Frame bearing Chassis No.FD3HDA-102638 (tampered ), Engine No.HO7DA-102638 (as per documents ), "Model 1991 as per seat belt" prima facie being non-duty paid/smuggled, was seized under Section 168 of the Customs Act, 1969 for violation of Sections 2(s) and 16 of the Act ibid read with Section 3(1) of the Imports and Exports (Controls ) Act, 1950 punishable under Section 156(1)(8)
(89) of the Customs Act, 1969 'read with Section 3(3) of the Import and Export (Controls ) Act, 1950. The case papers were submitted for adjudication.
5. Subsequently , a show-cause notice was issued to the appellants on 19.04.2010. The Additional Collector-II, MCC, Peshawar decided the case vide Order-in-Original No.133/2010, dated 08.06.2010, wherein the subject vehicle was confiscated outright under Section 156(1)(8)(89) of the Customs Act, 1969 read with SRO. 499(I)/2009, dated 13.06.2009.
6. Being aggrieved the appellants filed an appeal before the Collector of Customs (Appeals ), Rawalpindi, Camp Office, Custom House, Jamrud Road, Peshawar against the order-in-original dated 08.06.2010, the learned Collector of Customs (Appeals ), vide his Order-in-Appeal No.482 of 2010, dated 09.10.2010, dismissed the appeal of the appellants, and uphold the impugned order-in-original dated 08.06.2010. Hence the instant appeal to this Tribunal.
7. Arguments heard and record of the present case as well as record of case No.V -Cus(14)188/2008/6319, dated 04.09.2008 brought by Mr . Rehmat Ali, Inspector are perused.
8. It is evident from record that the same vehicle bearing Chassis No.FD3HDA-50963, Engine No.HO7DA-102638 (7412 cc) and Model 1993 (as per seat belt) was intercepted in the year 2008 by the Customs staff, which was released to the rightful owner (appellant Qasim son of Khanrray ) against payment of redemption fine @ 30% of the customs value in addition to all leviable duties and taxes of the vehicle in terms of 568(1)/2008, dated 23.06.2008 amended vide SRO.656(I)/2008 dated 23.06.2008. In the case of 2008 the vehicle was examined by the examiner of FSL, Peshawar , who reported as under:- No.S.Before Chemical treatmentNo.S.After Chemical Treatment Chassis No. Chassis No. FD3HDA-50963 FD3HDA-50963 Opinion:- Chemical examination of the chassis number of the vehicle in question revealed that:-- "No other number was deciphered in its Chassis number ."
"FD3HDA-50963"
At that time of the appellant (Din Mamamin son of Said Rehman) was the driver of the vehicle, which is still the driver for the same vehicle. It is stated that the said vehicle was cleared in Amnesty Scheme of 2008.
9. The said vehicle was once again intercepted by the Customs staff near Toll Plaza, Kohat, while driving the same driver (Din Mamamin son of Said Rehman) . The vehicle found was suspected and detained under Section 17 of the Customs Act, 1969 for necessary verification. This time once again the vehicle was examined through FSL, Peshawar . The FSL authorities vide report No.2284, dated 1 1.02.2010 reported as under:- Before Chemical treatment After Chemical Treatment Chassis No. Chassis No. FD3HDA-50963 Welded and refitted Chassis frame piece Opinion:- Chemical examination of the chassis number of the vehicle in question revealed that:-- The Original chassis frame has been cut at the site of the Chassis number and another Chassis frame piece measuring 5.5"x5' has been welded and refitted which bears the following number:- "FD3HDA-50963 "
10. Perusal of the record and laboratories reports reveals that the Engine number are one and the same, while Chemical report in the present case indicate that the Chassis number is welded and refitted.
11. Counsel for the appellant argued that the second report for the same vehicle is based on mala fide and was prepared with ulterior motives as first report of the FSL Laboratory , Peshawar of the same vehicle is very much clear on its Engine number and Chassis number . Counsel for the appellants further argued that if there is some wrong with the Chassis number , there will be the hand of the respondents behind because the vehicle remained from 08.01.2010 with the respondents and Chemical Examination was conducted on 1 1.02.2010.
12. It is very strange that the Customs authorities in many cases for reasons best known to them, apprehending vehicles again and again and for curbing, this issue very strong hands are required to prevent them from such practice, not to terrorize the citizens.
13. The case of the prosecution is doubtful for the reasons that the vehicle has been twicely apprehended by the Customs staff and twicely has been examined through the Chemical Examiner Report pertaining to the year is available on Page No.10 of the file produced by the Inspector Mr . Rehmat Ali.
14. The prosecution case in view of the above is of doubtful nature and is suspicious, the benefit of which shall be considered in favour of the accused/appellants. Therefore, I order unconditional release of the vehicle to the lawful owner on production of proper Registration and documents, and set-aside Order-in-Appeal No.482 of 2010, dated 09.10.2010 of the Collector of Customs (Appeals), Rawalpindi, Camp Office, Jamrud Road. Custom House, Peshawar and Order-in-Original No.133 of 2010, dated 08.06.2010 of the Additional Collector-II of Customs, Model Customs Collectorate, Custom House, Jamrud Road, Peshawar . This case is disposed of accordingly .