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Petitioner: ASIF JAVED VS Respondent: ADDITIONAL COLLECTOR OF CUSTOMS and another
Court Name: Customs Appellate Tribunal Judge(s): Adnan Ahmed Title: ASIF JAVED vs ADDITIONAL COLLECTOR OF CUSTOMS and another Case No.: Customs Appeal No.K-626 of 2014 Date of Judgment:2015-03-07 Reported As: 2015 PTD (Trib.) 2409 Result: Appeal allowed
Judgment ORDER ADNAN AHMED, MEMBER JUDICIAL-II, KARACHI.---This order will dispose off Customs Appeal No,K- 626/2014 fled by the appellant against the Order-in-Original No,338/2013-14 dated 9-1-2014 passed by the Additional Collector of Customs, (Adjudication-I), Karachi. 2. Brief facts of the case are that the officials of Anti Smuggling Organization, NMB, Wharf, Karachi intercepted a Toyota Land Cruiser bearing Reg.No,JAA.038 on charge of smuggled/non duty paid vehicle. The appellant was asked for documents and lawful possession, he failed to produce any documents, the vehicle was taken into possession for legal formalities and letters were written to concern departments for furnishing of attested copies of documents for knowing the legal status of vehicle, laboratory test of chassis and value assessed by the customs for duty and taxes on 16-11- 2013. The concerned departments reported that no record of vehicle is available, the original chassis number is completely grinded and filled off, however, a piece of chassis frame bearing Serial No,(FJ55-111346) is welded and replaced at the site of original chassis frame piece which means that the chassis number of the said vehicle had been tampered, no reply from concerned MRA, Lasbella, the appraised value of vehicle was informed that is Rs,4,614,533 and duty and taxes are involved are Rs,2,394,463. The vehicle was seized under Section 168 of the Customs Act, 1969 for violation of Sections 2(s), 16, 32 and 156(2) of the Customs Act, 1969 read with Section 3(1) of Imports and Exports Control Act, 1950. 3. The Additional Collector of Customs, (Adjudication-I), Karachi adjudicated the case and passed an Order-in-Original No,338/2013-14 dated 9-1-2014 as under:-- "I have gone through the facts and evidence involved in the case. No one has come forward to defend the charges. From the perusal of departmental report / facts available on record it is clear
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that the seized vehicle has tampered chassis number and is smuggled one. Therefore, the charges framed in the Show Cause Notice No,ASO-132/2013/Hqrs dated 11-12-2013 stand established. I, therefore order outright confiscation of seized, Toyota Land Cruiser bearing registration No,JAA-038 being smuggled/non-duty paid and with tampered Chassis number (FJ55-111346), Engine No,2F-257-9-Model-1997, under clauses (8), (89) & (90) of Section 156(1) of the Customs Act, 1969 read with SRO 499(1)/2009 dated 13-6-2009". 4. Being aggrieved with the Order-in-Original No,338/2013-14 dated 9-1-2014 passed by the learned Additional Collector of Customs (Adjudication), Karachi, the appellant filed this appeal before this Tribunal on the following grounds:-- That the appellant is bona fide second purchaser of seized vehicle Toyota Land Cruiser bearing Reg.No,JAA-038, Chassis No,FJ55-111346 Engine No,2F.257-9, Model 1997 and the registered owner was not charged in the show-cause notice. That the documents viz: Transfer Deed executed by die vendor with the vendee reveals that vehicle is free from all encumbrances liabilities from relevant authority and vehicle is registered before MRA, if any, discrepancy found in documents same was done by the previous owner and his address is available on record. That the vehicle was seized from Karachi city within the country and the contents of the show cause notice are denied because same are concocted, fabricated, due to their ulterior motive and the S.R.O. 118/83 dated 12-12-1983 is material whereby FBR has notified the area of five (5) miles adjacent to the frontier of Pakistan with India and Iran to the area to which section 177 of Customs Act shall apply. Thus the bare reading of section 177 read with SRO-118/83, shows that the movement of vehicle within the territorial limits of Pakistan do not constitute an offence and place of seizure in this case is Karachi. That no notice under Section 171 of the Customs Act, 1969 was served to the owner which is mandatory requirement of law. The mandatory provision of Section 103, Cr.P.C. was also not complied properly and opted mushirs belong to department and members of seizing party which can be confirmed from the record of the case. Separate mushirnama of the recovery was not prepared at the time of seizure. Although the appellant complied with the provision of section 187 of the Act by submitting required documents. That the Sections 2(s) and 16 of the Customs Act is not applicable because the vehicle is properly registered with the Excise and Taxation Department. The notice under Section 26 of the Act was not served on appellant for required information, the respondent has not complied with provisions of law. Reliance is placed on the judgment of Hon'ble High Court of Balochistan passed in Customs Appeal No, 3 of 2003. The relevant portion reads as under:-- "Proceedings under Section 26 of the Customs Act, 1969 are to be drawn before adjudication as it gives powers to appropriate officer to call for information relating to goods as may be necessary for determining legality or illegality of importation of such goods. Confiscation of goods would be illegal when no such proceedings under Section 26 were drawn by the customs department prior to the order of confiscation passed by the adjudication officer nor any such material was placed before him." That no notice under Section 26 of the Customs Act, 1969 was served as evident from the show cause notice. The object of Section 26 was to empower the authority to ask for information or require the production of documents or inspect the same in order to determine the legality or illegality of importation or exportation of goods which had been imported or exported, the value of such goods, the nature, amount and sources of funds or the assets with which the goods were acquired and the customs duty chargeable thereon or for deciding anything identical thereto. Authority could only for specific purpose of determining the legality or illegality, call for such information as required under section 26. The authorized officer of the customs could call upon any
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importer or exporter to furnish information in case where such determination was required. Such officer could not make a roving inquiry or issue a notice by merely shooting in the dark in the hope that it would enable him to find out some material out of these documents and then charge the party with irregularity or illegality. The customs authority had to state and disclose in the notice, the purpose for which documents required or supply information. Unless such purpose was specified in the notice, it would be a matter of any body's guess and it could not permit any authority to apply provisions of Section 26. Even in cases of suspicion of commission of illegality, details should be provided to the party to enable him to have an opportunity to produce all relevant documents and disclose information. Depending on facts and circumstances of case, any notice without disclosing any fact or particulars for which information or documents are required would be in violation of principles of natural justice and could be struck down as illegal and without jurisdiction. ' That the principle of law that state functionaries have no powers/authority to conduct fishing and roving inquires without possessing any definite and proper information, just in hope to unravel some concealment and illegality on the part of the assessee/tax payer/citizen is very well settled. In other words, before embarking upon any inquiry, the state functionary must already possess some definite material so as to establish any illegal action. In this regard reference is invited to 1995 PTD (Trib.) 580 wherein similar observations had been made while interpreting certain provisions of the Income Tax Ordinance, 1979. It is not only in fiscal laws but also in other laws that a similar principle of law duly exists. Reliance is placed on <u>Karachi Administration Employee Cooperative Housing Society Limited v. Government of Sindh 2004 YLR 1070 wherein the appellant/Claimant</u> had called into question the inquiry launched by the Registrar of Cooperative Societies under Section 43 of the Cooperative Societies Act, 1925. Striking down the, inquiry by a Division Bench of the Honorable Sindh High Court was pleased to hold that the Registrar possessed no reason or material warranting initiation of such inquiry. That the said issue came up for judicial scrutiny before the Supreme Court of Pakistan in the case Assistant Director Intelligence and Investigation v. Messrs B.R. Herman PLD 1992 SC 485, wherein their lordships had observed as under:- "the object of section of the Customs Act, 1969 is to empower the authority to ask for information or require the production of documents or inspect the same in order to determine the legality or illegality of importation or exportation of goods which have been imported or exported, the value of such goods, the nature, amount and source of the funds or the assets with which goods were acquired and the customs duty chargeable therein or for deciding anything incidental thereto. The authority can only for specific purposes of determining the legality or illegality call for information as required by section 26. The authorized officer can call upon any importer or exporter to furnish information in a case where such determination is required. It cannot make a roving inquiry or issue a notice by merely shooting in the dark in the hope that it will be able to find out some material out of those documents and then charge the party of irregularity or illegality. The authority has to state and disclose in the notice, the purpose of which the party is required to produce those documents or supply information. Unless such purpose is specified in the notice, it will be a matter of any body's guess and the accused party will be put to. inquiry without any specific allegations or facts disclosed to him. It does not permit any to employ the provisions of Section 26 to make indiscrimination, roving and fishing inquiry irrespective of the fact whether any determination of legality or illegality in import, export of fund with which the goods were acquired is to be determined. Even in cases of suspicion of commission of illegality, details should be provided to the party to enable him to have an opportunity to produce all the relevant documents and disclose information. Depending on the facts and circumstances of the case, any notice without disclosing any fact or particulars for which information or documents are required will be in violation of the principles of natural justice and may be struck down as illegal and
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without jurisdiction." That it is thus evident from the charter of the show cause notice that no notice under Section 26 of the Customs Act, 1969 was given by the Adjudicating Authority to appellants and no specific charge regarding illegality of importation were disclosed. Even if there was any suspicion of commission of illegality, details should have been provided to enable the importers that is appellants to have an opportunity to produce all the documents and disclose information. Thus, if any inquiry was initiated against appellants it was nothing but a roving inquiry only to net him for any charge to be found out from the documents called and as observed by the Supreme Court in the case of Assistant Director, Intelligence and Investigation v. Messrs B. R. Herman (supra) such an action was unwarranted by law. That sections 2(s) and 16 of the Customs Act are not applicable as per circumstances of case. In presence of the prior information to seizing agency, the mandatory provision of sections 162 and 163 of the Customs Act, 1969. Section 162 empowers a Magistrate to issue warrant or by a gazetted officer of the Customs under Section 163(1), an officer of the Customs not below the rank of an Assistant Collector of Customs or any other officer of like rank duly employed for the prevention of smuggling, if he has reason to believe that any goods liable to confiscation under the act are concealed or kept in any place and there is a danger that the same may be removed before a search, can be effected under Section 162, may after preferring.a statement in writing of grounds of his belief and of goods for which, search is to be made. According to the subsection (2) of Section 163 officer further require to leave a signed copy of aforementioned statement in accordance with the mutates mutandis with the provisions of criminal procedure code. If the search carried out without a warrant is in contravention of section 163(1). The presence of the, Magistrate cannot be said to obviate a necessities of obtaining a search warrant. The precedent cited in a case Shaukat Hussain v. Zulfiqar Ahmed and others (PLD 1981 Lahore 13), 1983 PCr.LJ 676, already decided by the Superior Court and released the seized goods, it was held as under:-- "It, therefore, follows that all the proceedings taken by respondent the raid, the search, the seizure and the prosecution of the appellants is without lawful authority and of no legal effect. It is so declared. All the subsequent proceedings, which are based on such an illegality, are all non- existent in the eye of law. The goods seized shall forthwith be returned to the respective appellants I, therefore, accept the Petitions and declare that the search and the seizure of the goods in question are without lawful authority and of no legal effect and that the subsequent proceedings, either before the Customs Authorities or the Special Judge Customs, based on such search and seizure are not existent in the eye of law and direct that the goods seized be returned to the appellants"</i> That the FSL treatment was not done in presence of the appellant and not charged at the time of detention. Moreover, it is not true that the vehicle was sent to the Assistant Inspector General of Police Forensic Division Karachi. That in identical cases same kind of vehicles were released by the Superior Courts and this Tribunal vide orders in C.Ps. Nos.381/2013, D-2280/2010, SCR Application No,187/2011, SCR Application No,58/2010, 5 Z R Application No,112/2007, SCR Application No,258/2010, 5 3 R Application No, 281/2007, Customs Appeals Nos. 357/LB-1999, H-412/2013, K-565/2013, K-566/2013, K-713/2013, G- 715/2013, and K-139/2011. That in identical case the Hon'ble Lahore High Court's Division Bench ordered in Special Customs Appeal No,68/2002 which was upheld by the Hop'ble Supreme Court of Pakistan vide Customs Appeal No,91-L. The relevant portion of the order of Hon'ble High Court is as "The afore-referred view is not in consonance with the law laid down by the August Supreme Court in Pakistan v. Ziauddin PLD 1962 Supreme Court 440 wherein the receipt of purchase and payment of money produced by the person from whom smuggled items were recovered was accredited
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with truth and the Court held that he had discharged the burden of proof mandated in Section 177-A of the Customs Act, 1969 at Page 446 it was observed as under:-- "The Section requires reasonable belief on the part of the person seizing the goods that an act to defraud the government of duly has been committed. If a person purchases goods in an ordinary market then in the absence of any suspicious circumstances or some definite facts leading to that interference the Customs Officer is not entitled to a reasonable belief that the government has been defrauded of the duty payable on the goods. The ordinary method of the import of goods from outside in to Pakistan is that they come through the Customs Barrier and the duty payable is in fact paid. The presumption, therefore, with respect to any goods which may be sold in open market in the absence of an indication to the contrary would be that duty has been paid on them." That in fact by giving a statement that vehicle has been purchased from the local market did discharge the burden cast on them and shifted on the department. It was for the prosecution to establish that the goods were smuggled, but unfortunately, same was never done and the seizing agency simply stated that it is an after-thought. The said statement of the seizing agency does not bring the offending goods within the fold of smuggling. Reference in this regard can be made to the case of Messrs Kamran Industries v. Collector of Customs reported as (PLD 1996 Karachi 68. That it is prayed that the above referred order-in-original may kindly be set aside and the vehicle in question may be restored to its claimant in the best interest of justice. 5. That on 19L8-2014 both parties were heard on point of limitation and appeal was reserved for order on 19-11-2014 order was passed and allowed the condonation application admitted the appeal for regular hearing for 2-12-2014. 6. During proceeding of appeal represented of respondent moved application for rectification under section 194-B(2) of Custom Act. 7. That on 12-1-2015 Mr. Malik Safdar P.O of respondent has argued the application in length with his instant the said application was dismissed in limine. 8. That on 16-2-2015 Mr. Asim Munir Bajwa advocate appears or behalf of the applicant and Muhammad Raza (A.C) on behalf of the respondent. 9. The counsel for the appellant has argued that the appellant is a bona fide purchaser of Toyota Land Cruiser bearing Registration No,JAA-038, Chassis No,FJ55-111346, Engine No,2F-257-9, Model 1997 from open market through a valid receipt, Transfer Deed, transfer letter and registration certificate, before purchase the status of vehicle was conformed/verified from Motor Registration Authority. The allegation of tampering on chassis number is denied as such at the time of detention of vehicle, the charge against appellant is only to produce import documents which were complied. The vehicle was seized on 29-11-2013 from the possession of the appellant's at Super Highway, Karachi. The customs authority has not issued notice under section 171 of the Customs Act, 1969 to the owner of the vehicle. The customs authority has also violated the provisions of section 103 of Cr.P.C. in respect of mushers. 10. The appellant being a lawful citizen and is ready to comply the legal requirements accordingly. The contents of the show cause notice dated 11-12-2013 are denied and same are concocted fabricated. The sections 2(s) and 16 of the Customs Act, 1969 is not applicable because the vehicle was registered with the Excise and Taxation Department. 11. The counsel for the appellant has produced and referred several judgments of Apex courts and this Tribunal which are referred above, he relied and focused his arguments almost on all above said judgments and particularly quoted the some of them passed in Special Customs Reference Application No,187/2011 (The Additional Director v. Arshad Ali Rind), Special Customs Reference Application No,263/2010 (Saif-Ur-Rehman and Waheed-Ur-Rehman v. Member Judicial-I and others) and Special Customs Reference Application No,58/2010 (Muhammad Gul v. Member Judicial and another).
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12. No one appeared on behalf of the respondent side despite of issuance of notices on each and every date of hearing, therefore, the matter is decided on basis of available record in case file. 13. By giving a careful consideration to the arguments of counsel and case record. It is observed that the respondent made the seizure and subsequently issued the show cause notice and order passed thereon in haphazard manner without considering the material particulars and evidence submitted by the appellant. Evidently, at the time of interception, driver from whom the vehicle Toyota Land Cruiser bearing Registration No,JAA-038 was intercepted as suspected to be smuggled/ non-duty paid. Appellant purchased it from open market through a legal way. It is also evident from the record that, the relevant documents in support of the claim of the appellant that the vehicle is duty paid and there is no illegality attributed by the respondent. The mala fide on part of respondent is clearly reflected from the act and omission adopted for getting the FSL report is clear. The vehicle was not sent for chemical examination and report was obtained in absence of owner. The verification of documents as well as registration book has not been done from the concerned quarters before issuance of show cause notice, wherein the respondents transgressed from their authority and legal obligations and bluntly violated the statutory provisions of law. Later on, required documents were submitted, which clearly transpire that the subject vehicle was registered after due process of law. Under the circumstances said forth before the Court to determine the substantive rights by administration of natural justice and equity, it is important to understand and observe that the application of Sections 2(s) and 16 of. Customs Act, 1969 to the merits of the subject case by the seizing authority is misconceived since the vehicle does not stand in the prohibitory/restricted list of items in terms of Section 2(s) and were brought into the country by a route other than route declared under Section 9 or 10 ibid. It is also important to place and analysis interpretation and obligation of Sections 2(s) and 16 and clauses 8, 89 and 90 of Section 156(1) of the Customs Act, 1969. It will be convenient to start by gathering in one place the relevant provisions of the Customs Act. The provisions are as follows:-- "2....(s) "smuggle" means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force or evading payment of customs-duties or taxes leviable thereon, (i) gold bullion, silver bullion, platinum palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances; or (ii) manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the official Gazette, which, in each case, exceed fifty thousand rupees in value; or (iii) any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs-station and includes an attempt, abetment or connivance of so bringing in or taking out of such goods and all cognate words and expressions be construed accordingly" ,..." "187. Burden of proof as to lawful authority etc.---When any person is alleged to have committed 'an offence under this Act and any/question arises whether he did any act or was in possession of anything' with lawful authority or under a permit, licence or other, document prescribed by or under any law for the time being in force, the burden of proving that he had such authority, permit, licence or other document shall lie on him." 14. The crucial point of difference among the three clauses: clause (8) applies to the smuggling of goods, clause (89) to "smuggled oods" and clause (90) to goods" not being goods referred to in clause (89)". The distinction between the "smuggling of goods" and "smuggled goods" is clear. 15. The above discussion persuades us to observe that if a person has been found without lawful excuse in possession of smuggled vehicle etc. he would be dealt with under clause (89) of section 156 of the Customs Act and if the evidence produced by the prosecution establishes that accused
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was smuggling the vehicle or' into Pakistan, then he would be liable to be dealt with under clause (8) of Section 156 of the Customs Act, 1969 and in such circumstances, would not be punished, under subsection (89) of Section 156 of Customs Act. Thus, clause (8) applies in relation to the very act (or acts together) which constitute the offence of smuggling. As Section 2(s) makes clear, this would include an attempt to smuggle and/or an abetment or connivance thereof Clause (89) on the other hand applies to, or at, the stage when the offence of smuggling is already complete. The difference can also be understood by noting that in clause (8), the word "smuggled" is used as a verb, whereas in clause (89), it is used in a descriptive sense as part of the expression "smuggled vehicle" (i,e,, as an adjectival participle or verbal adjective to indicate a past or completed action). When the facts and circumstances of the present case are perused, it is clear that clause (8) had no application at all. The act or offence of smuggling if so proved (even if such had occurred) longtime ago. One reason why it is important to establish whether or not the vehicle is "smuggled vehicle" (i,e,, whether or not Section 2(s) applies) is that this determines whether it is Clause (89) or (90) that…
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