SHAKEEL AHM AD. J.-Aggrieved from the judgment dated 5th September 2018, Customs Appellate Tribunal Petitioners Additional Collector Customs (Adjudication) at Model Custom Collectorate, Peshawar and two others have filed the instant reference before this Court for determination of the following questions of law: -
1. Whether under the facts and circumstances of the case learned tribunal was legally justified to order for unconditional return of a vehicle admittedly seized for violation of Section 2(s) and 16 of the Customs Act, 1969 read with Section 3(1) & 3 of the Imports and Exports (Control) Act, 1950 punishable under Section 156 (1) (8) & (89) of the Customs Act,1969?
2. Whether under the facts and circumstances of the case, the learned tribunal was legally justified to establish that any NOC under amnesty Scheme, 2013 with respect to Vehicle Toyota Coaster No.LES-191 Chassis No.BB420002404. Engine No.125337 model 1993 was issued to Respondent No.1?
And whether the chemical examination of the vehicle was not enough to support the confiscation of the subject vehicle, whereby admittedly the chassis No. shown as "BBX 000XXOX" and expert opinion has been furnished as "The original digit marked as "X" are refitted with weld material and decipherable. The present digits are re-stamped one"?
3. Whether the learned Appellate Tribunal has acted within its jurisdiction by substituting in its own wisdom for that of the legislative instrument?
4. Whether under the facts and circumstances of the case Respondents No.1 is legally justified for the relief granted by the learned appellate tribunal?
2. The unshorn details of the case of the petitioners are that on 10.04.2015, the customs staff stopped a Toyota Coaster No.LES.191, Chassis No.BB420002404, Engine No.125337 and Model 1993 for want of its legal import documents. On demand, the driver, namely, Hidayat Ullah son of Zarab Din, r/o Shaheen Muslim Town, Mohallah Afridi Abad No.1, Peshawar failed to produce any legal import documents, therefore, the said vehicle was detained under Section 17 of the Customs Act, 1969 for verification of its legal status. The chassis number of the vehicle in question was referred to PRAL.
Custom House, Peshawar with the request to check the data pertaining to imported vehicle as to whether the vehicle in question has been legally imported or otherwise. In response, it was intimated vide C. No. PCUS/COMP/2015/329 dated 05.05.2015 that the record of the vehicle pertaining to Chassis NoBB420002404 could not be traced out in Custom Data Base. The Director, Forensic Science Laboratory (FSL), Peshawar was requested for chemical analysis of its chassis number. The Director FSL Peshawar reported vide Lab. Report No.34-557-0-15 that: - Nos. Before Chemical treatment Nos. Before Chemical treatment.
Chassis No.BB42-0002402 Chassis No.BB4x-000xx0x Opinion: Chemical examination of the chassis number of the vehicle in question revealed that: - The original digits marked as "X" are refitted with weld material and not decipherable. The present digits are re-stamped one.
In light of the above verification and investigation, the detention was converted into seizure under Section 168 of the Customs Act, 1969 for violation of Section (2(s) and (16) of the Act, read with Section 3(1) of the Imports and Exports (Control) Act, 1950. A case F.I.R.No.89/2015 dated 10.04.2015 was also lodged in the 1&P Branch Custom House, Peshawar against the appellant.
3. Subsequently, after completion of the requisite formalities, the matter was placed before the Deputy Collector Customs (Adjudication) Peshawar, who vide Order-in-Original No.165/2016 dated 21.01.2016 out rightly confiscated the vehicle.
4. Aggrieved of the Order-in-Original, the appellant filed appeal before the Collector of Customs (Appeals), Peshawar who vide Order-in-Appeal No.157 of2016 dated 20.04.2016, dismissed the appeal.
3. Dis-satisfied with the judgment of the Collector of Customs, Peshawar the petitioners filed appeal before the Customs Appellate Tribunal Peshawar Bench, which was allowed vide judgment dated 5th September, 2018. Hence this reference.
4. We have heard the learned counsel for the parties at length and examined the record with their able assistance.
5. It appears from the record that vide application dated 30.03.2013, the petitioner produced his vehicle (Toyota Coaster) bearing Chassis No. BB420002404 Engine No.125337, Model 1993 (3600 cc) before the adjudicating officer under the umbrella of an amnesty scheme introduced by the Federal Government Vide SR0.172(1)/2013, dated 05.03.2013, read with SRO No.185 (1)/2013 dated 08.03.2013, for physical inspection and payment of duty and taxes to the Deputy Collector Customs.
After physical inspection of the vehicle, it was replied by the examiner/inspector to the Deputy Collector Customs that apparently, the chassis number of the vehicle is genuine and non- tempered, where-after, the Deputy Collector Customs (Adjudication) vide his order dated 31.03.2013 directed the Motor Registration Authority to register the vehicle against original copy of the order-in-original, original challan and NOC, confirming the payment of leviable duty/taxes and redemption of fine NOC was issued in the name of Zafar Banaras Khan, accordingly, registration, LES 14-191 was allotted to the vehicle. Later on it was sold to the respondent on 10.04.2015, the Customs Authorities seized the vehicle near Motorway Tool Plaza. The seized vehicle was examined through FSL, Peshawar, after examination of the vehicle on14.04.2015 it was opined as under: Nos. Before Chemical Treatment Nos. Before chemical treatment.
Chassis No. BB42-0002404 Chassis No.BB4x-000)o0x Opinion: Chemical examination of the chassis number of the vehicle in question revealed that: The original digits marked as "x" are refitted with weld material and not deciphereable. The present digits are re-stamped one.
6. There is no denial of the fact that the chassis number of the vehicle before and after chemical examination was found different, but, it is equally true that, initially this vehicle was examined by the Custom Inspector/Examiner and found no tempering in its chassis number and issued NOC for registration of the same in the office of MRA Lahore, after receiving all leviable taxes and duties. This fact was not denied by the Customs department that, its chassis number was not found genuine and tempered one when examined by the Inspector/examiner, when produced before him.
Thereafter, vide order dated 31.03.3013 the Deputy Collector Customs directed the Motor Registration Authority to register the said vehicle confirming the payment of leviable duty/taxes and redemption fine and to this effect, he also issued NOC for registration of vehicle in the name of one Banaras Khan, subject to production of above documents. In pursuance, thereof he produced all the requisite documents before MRA, Lahore and vehicle was thus registered in his name, after observing all legal and codal formalities it was registered under the registration No. LES14-91 Lahore, thereafter, the said vehicle was sold to the respondent on 10.10.2015.
7. In this backdrop of the case, we also consulted provision of Section 187 of the Customs Act, in our view, submissions of documents of the vehicle, duly issued by MRA Lahore submitted by the respondent to the appellant, was substantial compliance of the burden of proof required under the said provisions of the customs Act. Now the burden would shift to the petitioners, who then has to fulfill the legal burden of proof against the respondent to have smuggled the vehicle into Pakistan in violation of the provisions of the Act, on fulfillment thereof, the burden would shift to the respondent that he was in possession of anything with lawful authority or under a permit or license or any other documents, prescribed by any law for the time being in force, the burden of proving such fact that he had such license, permit or authority shall be upon him i.e. respondent. Following this principle of law in the instant case, the respondent by producing motor vehicle registration document has successfully discharged his burden, which was on his part.
8. It was vehemently contended before us that the learned Tribunal has committed a legal error in application of law, because it has been established that the chassis number of the vehicle in question was tempered with, therefore, it can safely be presumed that the vehicle was not lawfully imported to Pakistan, and, therefore, could not have been released to the respondent.
9. A perusal of the impugned judgment, and from available record, it is reflected that the respondent is the bonafide purchaser of the vehicle and the relevant documents relating to the transfer of the vehicle in his favour were produced before the Customs department that it was validly and legally registered with MRA, which was neither disputed nor challenged.
10. It will be pertinent to mention herein that the conclusion drawn by the Custom Department by presuming that the negative FSL report would mean that the vehicle was smuggled one, seems to be based on misconception and incorrect application of law for the reasons that once the respondents has produced sufficient material before the Custom Authority that the vehicle was lawfully registered with Motor Registration Authority and at no stage of proceedings any iota of evidence was produced that the same was unlawfully imported to Pakistan, there was no burden left upon the respondents to prove that the vehicle in question was not lawfully imported.
11. In view of the reasons mentioned above, this Customs Reference is answered in negative and the impugned judgment is maintained.
12. The office is directed to send the copy of this judgment under seal of the Court to customs, Federal Excise and Sales Tax Appellate Tribunal, Peshawar.