MR. RAJ MUHAMMAD KHAN, MEMBER (JUDICIAL).-(1). This appeal has been filed against the Order- in-Original No. 79/2001 dated 21.6.2001 passed by the Additional Collector Customs (Adjudication), Peshawar whereby he ordered outright confiscation of vehicle Toyota Corolla Motor Car No.B-1588 Swat under clauses (89) and (90) of sub-section (1) of Section 156 of the Customs Act, 1969 read with section 3(3) of the Imports & Exports (Control) Act, 1950.
2. Brief facts of the case are that on prior information, the staff of Superintendent Customs Mobile Squad intercepted the vehicle on 1.3.2001 and suspected its chassis number as tampered one. After serving notice under section 26 of the Act ibid, upon the occupant of the vehicle named Salahuddin, the detained vehicle was got examined from the Forensic Science Laboratory, Peshawar which reported about its chassis number vide its report SV.7124/FSL dated 2.3.2001 as follows:-- "Nos, before Chemical Treatment Nos, after Chemical Treatment Chassis No.CE 100-9001056 Chassis No.CE 100-9001056 No other number was deciphered in its chassis number. However, the chassis sheet is welded one."
3. The vehicle was also referred to the Toyota Frontier Motors, Peshawar for examination and verification whether the vehicle is Pakistan assembled or of foreign origin. They intimated to the Adjudication Officer that the vehicle was not Pakistan assembled but the model was Japan assembled. Accordingly, the detention was converted into seizure under section 168 of the Act and after hearing the parties, the impugned order followed.
4. Aggrieved of the Order-in-Original, the appellant has assailed it on the following grounds:- "A. That order of the respondent No.1 suffers from material irregularity hence liable to be set aside.
B. That respondent No.1 did not apply his. Judicious mind to the facts of the Case and announced an erroneous order.
C. That the vehicle in question was sold by Indus Motor Company Limited to One Tariq Mehmood son of Allah Dad R/o Abbotabad & the said Company issued a certificate in shape of form H as required by section 37 of Motor Vehicle Ordinance, 1965 which, vindicates genuineness of the vehicle.
D. That the said vehicle was purchased by the appellant from Tariq Mehmood on 30.12.1997 and was registered with Motor Registration Authority Swat after due and proper verification of documents and was allotted registration No.S WA 1588.
E. That so far the plea of welded is concerned it is submitted that the vehicle had met a serious accident in which the front portion of the vehicle had completely damaged and had to be repaired. The report of the accident was duly lodged in Police Station dated 8.9.99. It is to be noted here that it has been specifically mentioned that front portion of the vehicle had been severely damaged.
F. That the appellant proved it beyond any shadow of doubts that the vehicle has been lawfully imported into the country and produced lawful documents in support of his plea now the burden of proof shifts to the prosecution to show that the vehicle is smuggled one or non customs paid since the prosecution has badly failed to bring any thing on record to substantiate its allegations, therefore, the order of confiscation is unjust and illegal.
G. That the examination conducted in FSL has got no legal value because the same was conducted in the absence of the appellant and no opportunity whatsoever was provided to him to cross examine the experts of Laboratory. Even the experts who conducted the examination were not produced before the adjudication forum to depose in favour of their opinion which is mandatory in nature and non compliance of the mandatory provision vitiates the proceedings. Moreover, it is humbly submitted that the said laboratory is not notified by the Federal Government, therefore, the examination conducted is without jurisdiction and is not admissible.
H. That it is also pertinent to mention here that chassis plate of the vehicle is only welded an is neither re-stamped nor refitted and this is due to the sole reason of accident, moreover, this honourable Tribunal has released vehicles where the chassis plate is only welded."
In view of the above, it was prayed that the vehicle may be released to the appellant unconditionally.
5. We have heard the parties and have gone through the record of the case.
6. The main contention of the appellant is that he is bonafide vendee of the vehicle from one Tariq Mehmood to whom it was basically sold by Indus Motors Company Limited. It was explained that the vehicle had met a serious accident in which its front portion was completely damaged and the welding on the chassis sheet was due to repair.
7. It is evident from the record that the vehicle bearing chassis No.CE 100-9001056 and Engine No. 3314707 was sold by M/s Indus Motor Co. Limited to one Tariq Mehmood as per Sales Certificate and the Sale Certificate and Sales Invoice have duly been confirmed by them to the Motor Registration Authority Swat at the time of registration of the vehicle. The copies of these documents are placed on file as paged 10 to 14. The Sales Certificate indicates that the vehicle was imported by the said Company and applicable duty and taxes were paid by them. There is no denial of the respondent department to the fact of the sale.
8. The appellant has produced copy of report dated 8.9.1999 made to the Police showing that the vehicle was badly damaged. He has also produced copies of the receipts showing expenses incurred on repair in support of his contention that the welding to the sheet was due to repair.
9 The Recovery Memo of the vehicle in question, prepared by the Seizing Staff indicates, inter alia, the engine No. 3314707 and model 1996. Besides the chassis number which remains the same and no other number on the chassis sheet has deciphered, ; the engine number and model of the car, are also the same as per Sales Certificate issued by M/s Indus Motor Co. Ltd. The respondent department has not pointed out any difference in the particulars of the vehicle to suspect the same to be different from A the that imported in the country. Thus, simply the version of the respondent that the chassis sheet of the seized vehicle was I reported to be welded by the Forensic Laboratory, would not ipso facto lead to the conclusion otherwise.
10. In view of the above, we hold that the impugned order of confiscation of the vehicle is not based on solid and sufficient evidence and so is not maintainable in law. The same is, therefore, set aside.
The seized vehicle shall accordingly be released to its rightful owner unconditionally if not required in I any other case. The appeal stands accepted.
11. The parties be informed accordingly.
12. Announced.
13. MR. S. M. KAZIMI, MEMBER (TECHNICAL).--With due respect for my learned brother Member (Judicial), I do not find myself in agreement with his views, findings, conclusion and order as in the foregoing paragraphs.
14. We are conscious of the fact that smuggling into Pakistan Of automobiles attained such a proportion that the Government I allowed amnesty scheme for such automobile owners to pay duty and taxes for regularization of its possession. However, the menace of tampering with the chassis of a vehicle has continued unabated to disguise the smuggled vehicles. Chassis is the most important part of a vehicle on which fits its engine, body, wheels and other assembly. A vehicle is in fact identified with its chassis number which is inscribed by the Manufacturer at a very strong and rigid place on the chassis. A vehicle without its original chassis is not the original vehicle and a chassis without its original number in the original manner is not the original chassis. I can agree of an accident where a vehicle's chassis will be damaged or badly damaged but I cannot visualize an accident g which damages a chassis to the extent that it gets repaired with a welded sheet to replace the original inscription, whether with the original chassis number or otherwise: I have seen the Police Report No. Nil dated 06.09.1999 (1200 hours) which states that motor car No.SWAT-B-1588 collided with a tree and got badly damaged in this accident. It does not specify the extent of damage or damage to the chassis. Of the 3 un-number receipts produced by the appellant, 2 dated 15.09.1999 relate to purchase of miscellaneous parts and half-engine from M/s Gul Rehman & Aurangzeb, Old auto parts Store of Ali Market, Cantt, Mardan, and the remaining one un-number receipt dated 29.09.1999 relate to labour charges of for denting, painting and engine fixing. There is no bill/cash memo/evidence for repair of the chassis or welding of the chassis sheet with the number as inscribed on it. I am at loss to understand why welding of chassis-sheet with its chassis will be required to fix a badly damaged car. Moreover, the appellant could have got the welding aspect entered in his registration book for the purpose of showing bona fide. The documents (e.g. Sale Certificate, Sales Invoice, etc, issued by M/s. Indus Motors Company Ltd. In favour of the buyer Mr. Tariq Mehmood in 1998), relied upon by the learned Member (Judicial) in paragraph 7 above, is not entertainable by means these do not speak of any welded chassis sheet to this transacted vehicle and these documents are dated prior to the date of the reported accident. I also do not agree with the plea of a bona fide purchaser or a bona fide vendee. This is of no avail as it has been held by the Honourable Lahore High Court, Lahore, in its judgment dated 16.10.2001 in C.A No.4 of 1998 (PTCL 2002 g CL. 80) that the principle of bona fide purchaser in good faith and without notice is not applicable to the goods confiscated under the Customs Act, 1969.
The existence of the engine No. And verification of model is not denied but the engine is neither the , complete vehicle nor the basic vehicle. It is only the chassis and its untampered number which are the most important aspects for co-relation to an original vehicle. I have seen the 2 photographs of welded chassis sheet (one before chemical treatment and the other after it).
Photographs show that only a small portion of the chassis sheet has been cut and refitted by welding another. I am not satisfied of the reasons advanced for welding of chassis and that too only of a part where the number is inscribed. This is a Clear and obvious mischief to hoodwink the government, to deprive the exchequer of its legitimate revenues and to disguise a smuggled car with a welded chassis number in place of the I original inscribed chassis number. The vehicle is not of Pakistan origin and the chassis sheet with welded part bearing the chassis number speak of the intent and purpose.
15. For the reasons given above, I do not agree with order of my learned brother releasing this and I hold that the vehicle was correctly confiscated under clause 89 of section 156(1) of the Customs Act, 1969, with no option to the owner to pay any fine in lieu of confiscation under section 181 of the Act read with notification No.SRO 1374(I)/98 dated 17.12.1998. The impugned order is, therefore, confirmed and the appeal is dismissed accordingly.
MR. JUSTICE (R) ABDUL MAJEED TIWANA, CHAIRMAN/MEMBER (JUDICIAL).(1). While disposing of this appeal, a difference of opinion has emerged between the learned Members of Peshawar Bench of the Tribunal inasmuch as where the learned Member (Judicial)- proposed to accept the appeal, set aside the impugned order of the adjudicating officer about the confiscation of vehicle in question on the ground of its being a smuggled one and directing its release without any condition, the learned Member (Technical) in his dissenting note has proposed to dismiss the appeal after upholding the impugned order.
2. The difference of opinion mainly rests on the report of the Forensic Science Laboratory regarding the condition of chassis plate of the vehicle. According to the Member (Judicial), since the chassis number, engine number and model of the car remained the same as were indicated in the sale certificate issued by M/s. Indus Motors Company Limited, who had sold it, the mere fact that the chassis sheet was reported by the Laboratory to have been welded was not enough to label the vehicle as smuggled one. While, as per learned Member (Technical), the welding of chassis plate by itself was so basic that no other conclusion could be drawn except that the vehicle in question was a smuggled one.
3. It is the case of the appellant that the vehicle in question had met an accident in which, besides other parts, chassis plate was also damaged and it under went a heavy repair. In support of his version he has brought on the record even the copy of the report lodged with the Police about the accident. In other words, his own stance corroborates what has been stated by the Forensic Science Laboratory about the welding of the chassis plate. It is a matter of common knowledge that genuineness or otherwise of the chassis number of the vehicle is a decisive factor in determining the smuggled character of the vehicle and efforts are made by the persons dealing in, or using, smuggled vehicles to affix chassis number of genuinely imported vehicle on the chassis of the smuggled vehicle to give it a look of genuinely imported one. In the instant case, the welding of chassis plate, which is an admitted fact, can lead to no other conclusion except that an effort was made by the present appellant, or some of its previous owners, to convert a smuggled vehicle into a genuinely imported one by adopting this device. I, therefore, agree with the conclusion reached by the learned Member (Technical) and would dismiss the appeal. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.