SHAKIL AHMED ABBASI, MEMBER JUDICIAL-III. By this judgment, I intend to dispose of above mentioned Customs Appeal filed by the appellant, against the Order-in-Original No.01/2023 dated 05.07.2023 passed by the Collector of Customs, Collectorate of Customs Adjudication, Quetta Camp Office at A-49, SITE Area, Customs House, Hyderabad.
2. That as per the Show-Cause notice, it is the case of the respondent that regional office, Hyderabad team of ASO Wing of Hyderabad immediately approached at the scene of incidence and found that Crane bearing Registration No. ZAA-116 was being loaded by some persons at above trailer. On preliminary inquiry introduced yourself as driver at trailer No. TLJ-022, and disclosed that Crane is being loaded thereupon for its transportation to Karachi. In this regard he has also produced copy of Registration Book No.00156894 issued by MRA Quetta. However, he has failed to produce any legal import documents in respect of the aforesaid Crane. Consequently.
Crane was escorted to the intelligence State Ware House Hyderabad against proper musheernama and the same was detained vide Detention Notice dated 28.02.2023, to ascertain its legal import into the country: Meanwhile, the Excise and Taxation Officer, Motor Registration Authority, Quetta was approached vide letter C.No.03 (04)DCI-Hyd/ASO-Corres/2021-22/1806 dated 08.03.2023 to provide copies of documents on the basis of which the Crane was registered against Registration No. ZAA-116. The Senior Excise of Taxation Office Motor Registration Authority Quetta, vide letter No.615-16/Verification dated 14.03.2023 supplied copy of letter S. No. 125-dated 27.07.1987 and along with Form "F" S. No. 321 issued by Ghandhara Nissan (Private) Limited, Karachi.
The above mentioned documents when compared did not co-relate with physical description of the aforesaid Crane in order to verify the genuineness of Chassis Frame of Crane, the Incharge Forensic Science Laboratory, Hyderabad was approached for chemical examination. In response after Lab Test of aforesaid number the Incharge FSL, Hyderabad vide chemical Examination Report C.No.FSL/FD/OR/V/50/2023 dated 07.04.2023 intimated that "the present chassis number UG780E- 37354 is self-made/fake digits". Since no import documents have been produced in respect of P & Kobil Co. Crane bearing Registration No. ZAA-166 having tampered Chassis 73754, Engine No. HO60T-12474. (Tone40), 08-Cylinder brought into the Country through unauthorized route without filling of GD and payment of duty and taxes, therefore, the aforesaid Crane is hereby seized along with registration book and other documents for violation of the provisions of Sections 2(s), 16 and 168 punishable under clauses (8) & (89) of Section 156 of the Customs Act, 1969. The notice issued under Section 171 of the Customs Act, 1969 was issued against the driver and copy of the same notice was also pasted on the Notice Board, office of Regional Office, Customs House, Hyderabad.
At the stage of adjudication the appellants had placed on record his bona fide and had submitted that admittedly that as regards the FSL report the same is correct and up to the mark with respect to Manual Punching of the chassis number as it also does not suggest any act of tampering or manipulation on the chassis site coupled with the fact that M/s. Gandhara Nissan (Private) Ltd. and M/s. Hino Pak invariably inscribe the chassis numbers on its locally produced chassis frames by way of manual proficiency. The appellant had also requested that if desired this fact may be verified from the M/s. Gandhara Nissan (Private)' Ltd, but the adjudication officer being an officer of the same mite of the Federal Board of revenue did not care to make proper investigations and deliver a proper judicial order in this regard and confiscated the Pakistan assembled Nissan vehicle along with the fitted Crane.
6(sic) The Appellant being aggrieved and dissatisfied with the impugned. Order-in-Original filed the instant appeal. Some important grounds of the appeal are as under:- A) That the vehicle in question fitted with Crane had been purchased by the appellant form one Mr. Muhammad Azam son of Noor Muhammad CNIC No. 45402-9532054-9, resident of House No. 207, Sector A. Mohalla Babar Block, Bahriya Town Lahore, Punjab against exchange of car and further running installments, copy of affidavit of the said Mr., Muhammad Azam.
B) That the staff of the respondent caused to seizure the vehicle against a detention memo dated 28.02.2023 without assigning any charge with respect to its chassis i.e. a rowing inquiry detention memo was issued. Obviously with the aim and object to shoot in the dark and getting something in reward. In terms of Section 168(2) of the Customs Act, 1969 an officer dully authorized can cause to seizure such of the goods against which there is a reasonable belief that these are liable to confiscation. Legally speaking this type of rowing inquiry is deprecated.
C) That in term of section 168(1) of the Act, 1969, read with SRO 371(I)/2002, an appropriate officer can make the seizure if a reasonable belief exists that the goods sought to be seized are liable to confiscation - a prerequisite for seizing anything. Reliance is placed on case laws reported 1973 SCMR 411; PTCL 1986 CL 253; PLD 1977 Lahore 1318. The phrase liable to confiscation is significant and denotes that liability of confiscation is pre-requisite.
D) That the series of events as elaborated in the show-cause notice i.e. detention memo dated 28.02.2023; letter to the ETO/MRA Quetta dated 08.03.2023 and undated letter to the FSL authorities who vide letter dated 07.04.2023 replied back that the chassis number is self/manually punched, indicates that the vehicle remained in the illegal custody of the respondent since 28.02.2023 till the date of making out of Seizure i.e. 14.04.2023.
E) That the legal position is that there no concept of detention in section 168(1) of the Act which is the only provision of law under which an appropriate officer is empowered to seize goods liable to be confiscated under the Act. The seizure had thus become effective from the date the goods were taken into custody (i.e. 28.02.2023 in the instant case). By the time, therefore, the show-cause notice dated 19.05.2023 was issued, the provisions of Section 168(2) had come into full force rendering the seizure illegal, nullity in the eye of law, as admittedly the liability to confiscation of the vehicle had not been ascertained by the seizing officer i.e. he started a rowing inquiry by issuing an illegal detention memo. Reliance is place on PTCL 2005 CL. 480 - Customs. Ss: 2(rr), 32, 80 & 83, 168.- Sindh High Court, Karachi Syed Muhammad Razi v. Collectorate of Customs (Appraisement), Karachi and 2 others.- Para 18 @ G & H.- HELD THAT Seizure dealt in sections 168 and 171 and detention in section 186 are distinct from each other and the provisions are also distinct and separate. The legislature has used two different expressions in the Customs Act, namely 'seized' and 'detention' and different provisions have been enacted for 'seizure' and 'detention' of goods. The seizure has been dealt with in sections 168 and 171 of the Customs Act, while the 'detention' has been dealt with under section 186 of the Act. The two acts are distinct and separate. The difference in the two acts is also distinct and separate. The difference in the two acts and the provisions governing them are always required to be kept in view. Under section 186 the goods can be detained pending payment of fine or penalty, while under section 168 the goods can be seized if they are liable to confiscation under the Customs Act, 1969. For the purpose of detention of goods no separate reasons are required to be recorded and communicated to the owner or person in possession of the goods except that the detention is for the purpose of payment of fine or penalty which has been imposed or the imposition whereof is under circumstances. However, in the case of seizure of goods under section 168 the reasons are to be recorded under section 171 and communicated to the person from whose possession the things are seized.
F) That as regards the FSL report the same is correct and up to the mark with respect of Manual Punching of the chassis number, and it also does not suggest any act of tampering or manipulation on the chassis site. It may not be out of place to mention here that M/s. Gandhara Nissan (Private) Ltd. and M/s. Hino Pak invariably inscribe the chassis numbers on its locally produced chassis frames by way of manual proficiency. There are a number of previous cases decided on this pretext, as however if required this aspect may be got confirmed from M/s. Gandhara Nissan (Private) Ltd:.
G) That in terms of section 168 of the Act, 1969, read with SRO 371(I)/2002, an appropriate officer can make the seizure if a reasonable belief exists that the goods sought to be seized are liable to confiscation - a prerequisite for seizing anything. Reliance is placed on case laws reported 1973 SCMR 411; PTCL 1986 CL 253; PLD 1977 Lahore 1318. The phrase liable to confiscation is significant and denotes that liability of confiscation is pre-requisite.
H) That another legal aspect of the matter is that since the very act of the detention and subsequently converting the detention into seizure of, the lawfully registered Pakistan assembled vehicle by M/s. Gandhara Nissan (Private) Ltd: who invariably inscribe the chassis numbers on its locally produced chassis frames by way of manual proficiency, is/was illegal and unwarranted, as the exercise of unbridled power continue to deprived the appellant from the use of lawfully registered vehicle causing him mental worries and financial losses, law and justice warrants to award suitable compensation, not less than Rs.5,000/- per day from February 28, 2023 in accordance with the precedent judgment of the Hon'ble apex Court in the case "titled Collector Customs, Sales Tax and Central Excise v. Professor Muhammad Khan" reported 2007 SCMR 10.
J) That it is necessary to impress here that in terms of Para 80 of CGO 12/2002 dated 15.06.2002 copy attached, it is/was incumbent on the adjudicating officer to decide a lis by making independent inquiries and to do justice in between the parties, Reliance is placed on reported case laws; "(i) 1988 SCMR 691 (ii) 2008 CLC 10 - Pesh; (iii) 1998 CLC 1684; (iv) 1996 CLC 293; (v) 2005 PTC 1189 Lahore; and (vi) 2000 CLC 1783; Held that; (i) Where the executive authorities are called upon to perform judicial functions, such functions are quasi judicial, requiring the observance of the rules of natural justice; (ii) The very condition for conferment of jurisdiction on Tribunal or any other forum exercising judicial/quasi judicial authority is that it should decide a 'lis' according to law, the essential requirement of which is that finding be based on proper appraisal of evidence and that findings based on misreading or non-reading of evidence, erroneous assumption of law , and facts or on no evidence deserve no any other fate, but quashment; (iii) The duty of the Presiding Officer is that the Judgment is to give impression that the same has been delivered after applying judicial mind and with full devotion; (iv) Judicial and quasi-judicial forums are required to pass well-reasoned orders; (v) Not the conclusion but the reason is a hall mark of a judiciar order; and (vi) ... even quasi-judicial functionaries are obliged to record reasons and pass speaking orders while adjudicating upon matters concerning rights of parties"].
7. During the course of hearing despite provision of copy of appeal and notice of hearing to the respondent/department, none appeared nor filed parawise comments. This attitude reflects that the department is not interested to prosecute this Appeal. Hence, the Appeal is decided on the basis of available record and merits. The learned counsel for the Appellant is heard at length and the case law furnished by him are taken on record. As per counsel the issue in hand as per Show- Cause Notice is specifically to the extent of chassis numbers of the vehicle which as per lab report vide chemical Examination Report C.NO.FSL/FD/OR/V/50/2023 dated 07.04.2023 intimated that "the present chassis number UG780E-37354 is self-made/fake digits", and that no import documents have been produced in respect of P & H Kobil Co. Crane bearing registration No. ZAA-166. The intriguing aspect of the matter is that when at the initial stage of adjudication the appellant had discharged his burden of proof by placing on record the basis of registration of the vehicle in question evidencing that the same is of locally manufactured by M/s. Gandhara Nissan (Private)
Ltd: who invariable use to punch/inscribe the chassis numbers on the locally produced vehicles by way of manual proficiency, the appellant had openly offered to get this aspect checked from the manufacturers i.e. M/s. Gandhara Nissan (Private) Ltd: but the needful as required to be done as per law was not done. Even now the appellant in his memo: of appeal have stressed on, this aspect and has offered. to get his documents and vehicle checked from the manufacturers M/s. Gandhara Nissan (Private) Ltd:, but despite notice and service of memo of appeal the respondent/department has not come forward with any plausible reasoning, which indicates deviation from the settled principle of law and specifically Section 187 of the Customs Act, 1969. The appellant having discharged his burden of proof it was on the respondent/department to controvert the same.
8. The learned counsel further argued that the Collector Customs (Adjudication) has also ignored that the registration of vehicle is sufficient proof of the fact that the vehicle is locally assembled and registered with MRA Quetta on 12.11.1987 against Invoice No. 135 dated 27.07.1987 issued by M/s. Gandhara Nissan (Private) Ltd:, whereas as per the laboratory report no new chassis number was deciphered nor any sign of grinding and manipulation have been hinted therein, the fact that the chassis number is self made/fake digits could have been of any legal worth if the department had come forward to negate/controvert the fact that M/s. Gandhara Nissan (Private) Ltd. and M/s. Hino Pak (Pvt.) Ltd: do not punch/inscribe the chassis numbers on the locally manufactured vehicles by way of manual proficiency. The evidence produced by the appellant in the form of various certificates confirm that these local manufacturers/assemblers punch/inscribe the chassis numbers through manual proficiency i.e. by hand and not through a computerized machine.
Furthermore, the FSL report as incorporated in the Show-Cause Notice does not suggest any act of tampering and in the absence of any report that digits of the chassis were disturbed by making any tampering with it, the confiscation of the Pak assembled vehicle is not in accordance with law and facts both.
10. In view of the above, I allow this appeal and set aside the Order-in-Original No.01/2023 dated 05.07.2023 along with the Show-Cause Notice of the Collector of Customs Adjudication, Quetta Camp Office at Hyderabad. The vehicle is ordered to be released unconditionally.
11. The Appeal stands disposed in above terms with no order as to cost.