MUHAMMAD AAMIR NAWAZ RANA, J. The Collector, Model Customs, Collectorate of Gwadar (applicant) has assailed the order dated 19.08.2020 (hereinafter "the impugned order") passed by Customs Appellate Tribunal Bench-II, Karachi (hereinafter "the Appellate Tribunal"), whereby Custom Appeal No.G-875/2020 had been decided in favour of respondent No.1 and the Order-in- Original No.195/2020 dated 04.05.2020 passed by Additional Collector, Collectorate of Customs (Adjudication), Quetta (hereinafter "the Additional Collector Quetta") was set aside and the vehicle confiscated was directed to be released subject to payment of 20% redemption fine on its Customs Value and personal penalties were also waived.
2. Brief summary of the facts necessary to bring on record are that on credible information that diesel of Iranian origin is being smuggled through vehicles from Quetta to Karachi without complying the legal formalities, on 01.01.2020 Mazda Truck having Registration No.TKW-557 (hereinafter "the vehicle in question") was stopped by checking party; notice under section 164 of the Customs Act, 1969 (hereinafter "the Customs Act") was served to the driver of Mazda Truck Muhammad Ashraf son of Abdul Qadir and as per law detail checking of Mazda Truck was carried out which resulted in recovery of Iranian diesel hidden in the secret cavities of Hino Truck; after serving notice under section 171 of the Customs Act for violation of different provisions of the Customs Act, 13,100 liters diesel was recovered and the Truck was seized. The Order-in-Original dated 04.05.2020 passed by Additional Collector Quetta mentions that chemical examination of the vehicle was carried out and according to the opinion of chemical examiner, the vehicle's chassis serial (3546007) were found self punched/fake digits; the original chassis serial (FD8JKF- 10184) were visible after chemical process on the left side .of chassis frame under driving cabin and resultantly the vehicle was confiscated outrightly. The relevant para of Order-in-Original dated 04.05.2020 is reproduced herein below: "12. As for the seized vehicle, the same has been used evidently for carriage/removal of offending goods. The smuggled goods have been found concealed in secret cavities. The respondent failed to justify presence of especially designed secret cavities in the vehicle. Therefore, the vehicle is liable to outright confiscation under Section 157(2) of the Customs Act, 1969 read with SRO 499(I)/2009 dated 13.06.2009 (in terms of Board's letter No. 10(17)L&P/05 dated 26.06.2006).
Moreover, the chassis number of the vehicle has been found self punched/fake. The respondent failed to justify tampering of the chassis number and frame. As a result of tempering of chassis number and frame, the vehicle has also lost its identity. The claim of the respondent that his vehicle is lawfully registered is wrong because the seized vehicle is tampered. This clearly proves that the seized vehicle was smuggled into the country without payment of duty taxes and without following prescribed procedure, Accordingly, the vehicle is liable to outright confiscation in terms of clauses (8) and (89) of Section 156(1) of the Customs Act, 1969 for violation of Sections 2(s) and 16 of the Customs Act 1969, SRO 499(I)/2009 dated 13-09-2009 and SRO-566(I)/2005 dated 06.06.2005, read with Section 3(1) of the Imports and Exports (Control) Act, 1950. In the light of foregoing, the seized vehicle appearing at Serial No. 02 of the Table at Para 08 above is ordered to be confiscated outright in terms of clauses (8) and (89) of Section 156(1) and Section 157(2) of the Customs Act, 1969 for violation of Sections 2(s) and 16 of the Customs Act, 1969, SRO 499(I)/2009 dated 13-09-2009, Board's letter No.10(17) L&P/05 dated 26.06.2006 and SRO-566(I)/2005 dated 06.06.2005 read with Section 3(1) of the Imports and Exports (Control) Act, 1950".
3. The above order was assailed by respondent No.1 before the Appellate Tribunal and the Appellate Tribunal, while connecting as many as 16 Customs Appeals, passed common order dated 19.08.2020; except Order-in-Original No.858/2019-20 dated 03.03.2020, all the remaining Orders-in-Original were set aside and direction was issued to the Customs authorities to release the vehicles including the vehicle in question subject to payment of 20% redemption fine on their Customs Value.
4. Learned counsel for the applicant has raised number of objections against the impugned order dated 19.08.2020 passed by the Appellate Tribunal and vehemently ,contended that the same has been passed without considering the available record and in complete disregard to the settled principles of law, therefore same is not sustainable in the eyes of law and requested to set aside the same, while learned counsel representing respondent No.1 argued in favour of the impugned order dated 19.08.2020.
Arguments heard from both the parties and record perused.
5. It is noted with grave concern that the Appellate Tribunal did not bother to consider the merits of Order-in-Original dated 04.05.2020 passed vis-a-vis vehicle in question and completely neglected the unchallenged report of chemical examiner whereby the chassis number of the vehicle in question was found to be tempered. The applicant has brought number of question of law before this Court but the moot point involved with regard to law in this application is "whether the vehicle which was found with tempered chassis number could be released on payment of 20% redemption fine on its Customs Value?"
It reveals that the vehicle in question was confiscated vide Order-in-Original dated 04.05.2020 passed by the Additional Collector Quetta in which it was categorically mentioned that the chemical examination of the vehicle has disclosed that the chassis number of the vehicle was self punched/fake, whereas the original chassis number of the vehicle was visible after chemical process so in such view of the matter, the vehicle was rightly, outrightly confiscated vide Order-in- Original dated 04.05.2020 by Additional Collector Quetta. The Hon'ble Supreme Court of Pakistan in the cases of Chaudhry Maqbool Ahmed v. Customs, Federal Excise and Sales Tax, Appellate Tribunal[1] and Noor Muhammad v. Customs Appellate Tribunal, Peshawar[2] has held that forensic report in such like matters deserve due credence and it was incumbent upon the aggrieved person to challenge/discredit the same in the proper proceedings. The ratio of such judgments passed by the Superior Courts is that the Goods as well as the conveyance carrying it, with an apparent tempered chassis number as denoted from uncontroverted forensic report, when enters into the territorial jurisdiction of the country in violation of the provisions of the Customs Act, are liable to outright confiscation.
The upshot of factual and legal position narrated and explained above is that the vehicle in question having tempered chassis number, as proved from unchallenged forensic report, was rightly confiscated by the Additional Collector Quetta vide Order-in-Original dated 04.05.2020 and the Appellate Tribunal has committed grave error by releasing vehicle in question subject to payment of 20% redemption fine on its Customs Value. It is also noted that the Appellate Tribunal either overlooked the forensic report vis-a-vis tempered chassis number or deliberately put the same under carpet, therefore as a result of detail analysis, the instant Customs Reference so filed by the applicant, is allowed and answered in affirmative; as a consequence whereof, the impugned order dated 19.08.2020 passed by the Appellate Tribunal is set aside and the Order-in- Original dated 04.05.2020 passed by Additional Collector Quetta, whereby the vehicle in question was outrightly confiscated, is upheld
1. 2009 PTD 77