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Petitioner: SULTAN MUHAMMAD VS Respondent: COLLECTOR CUSTOMS and another
Court Name: Peshawar High Court Judge(s): Yahya Afridi, Haider Ali Khan Title: SULTAN MUHAMMAD vs COLLECTOR CUSTOMS and another Case No.: Custom Reference No,26 of 2010 Date of Judgment:2014-11-20 Reported As: 2015 PTD 570 Result: Order accordingly
JUDGMENT
JUDGMENT YAHYA AFRIDI, J.---Through this single judgment, this Court proposes to dispose of nine Custom References, as common questions of law are involved therein. The particulars of the said References are as follows:- (i) Custom Reference No,26/2010 (Sultan Muhammad v. The Collector Customs, Peshawar and another). (ii) Custom Reference No, 39/2011 (Abdul Waheed Khan v. The The Collector Customs and others). (iii) Custom Reference No, 33/2012 (Rafiullah and another v. The Collector Custom). (iv) Custom Reference No, 43/2013 (Sadaqat Ali and another v. The Collector Customs, Peshawar). (v) Custom Reference No, 44/2013 (Muhammad Fayaz and another v. The Collector Custom, Peshawar). (vi) Custom Reference No, 30/2013 (Anwar Ilayat v. The Collector Custom, Peshawar). (vii) Custom Reference No, 18/2013 (Collector of Customs v. Haji Shah Muhammad and others). (viii) Custom Reference No, 23-P/2013 (The Collector of Customs v. Nazakat Khan). (ix) Custom Reference No, 7/2014 (The Collector of Customs v. Muhammad Samar and another). 2. The peculiar facts leading to the filing of aforementioned Custom References are as under:-- Sultan Muhammad v. The Collector Customs, Peshawar and another (Custom Reference No, 26/2010). On 3-3-2008, the Customs Anti-Smuggling Unit, Kohat intercepted a Toyota Hilux Surf bearing Registration No, ZBT-3714 near District Jail, Kohat. On demand, the petitioner produced photocopy
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of certificate of vehicle registration dated 18-5-1994 and bill of entry No, 370/94 dated 1-7-1994, which were suspected to be forged. The vehicle was detained under section 17 of the Customs Act, 1969 and it was examined through Forensic Science Laboratory, Peshawar ("FSL), who submitted the following report: Before Chemical treatment After Chemical treatment Chassis No, LN1309-0092719 Chassis No, Piece measuring 9" x 4 1/2" has been welded. Opinion Chemical examination of the chassis number of the vehicle in question revealed that: The original chassis number has been cut at the site of the chassis number and another metallic piece measuring 9" x 4-1/2" has been welded refitted which bears the following number: "LN1309-0092719" After receipt of FSL report, a show-cause notice was served upon the petitioner and the matter was placed before the Additional Collector Customs, Peshawar for adjudication, who vide order dated 24-4-2008, outrightly confiscated the vehicle. Being aggrieved, the petitioner filed appeal before the Collectorate of Customs, Sales Tax and Federal Excise (Appeals), Peshawar, which was dismissed vide order dated 16-6-2008. Dissatisfied with the above said order, the petitioner filed second appeal before the Customs, Federal Excise and Sales Tax Appellate Tribunal, Peshawar Bench, which too was dismissed and the orders of confiscation of vehicle were upheld vide order dated 17-11-2009. (ii) Abdul Waheed Khan v. The Collector Customs and others (Custom Reference No, 39/2011). On 25-5-2010, the Staff of Customs Intelligence and Special Checking Squad, Peshawar intercepted a non-duty paid/smuggled Toyota Corolla. Car bearing Registration No, SAC-333 near Jan Plaza, Peshawar. On demand, the petitioner did not produce any documents to prove the legal import of vehicle. Thus, the vehicle was detained under Section 17 of the Customs Act, 1969 and it was examined through FSL, Peshawar, who submitted the following report: Before Chemical treatmentAfter Chemical treatment Ch: EE90-0036992 Welded and Refitted Piece Opinion Chemical examination of the chassis number of the vehicle in question revealed that welded and refitted chassis number piece bears the following number: "EE90-0.036992" After receipt of FSL report, a show-cause notice was served upon the petitioner and the case was placed before the Deputy Collector MCC,. Peshawar, who vide order dated 13-8-2010, outrightly confiscated the vehicle. Being aggrieved, the petitioner filed appeal before the Collectorate of Customs (Appeals), Peshawar, which was accepted vide order dated 2-11-2010 and it was ordered that the vehicle seized/confiscated be released to its rightful owner. Thereafter, the respondents- department filed appeal before the Customs Appellate Tribunal, Peshawar Bench, who vide order dated 7-3-2011 accepted the same and confiscated the vehicle in question. (iii) Rafiullah and another v. The Collector Custom (Customs Reference No, 33/2012). On 12-10-2010, the Customs Anti-Smuggling Unit, D.I.Khan intercepted a non-duty paid Isuzu Trooper Jeep bearing fake registration No, IDB-2703. On demand, the petitioner did not produce any documents regarding legal import of the vehicle. Thus, the vehicle was detained under Section 17 of the Customs Act, 1969 and it was examined through FSL, Peshawar, who submitted the following report:-- No's Before Chemical treatment No's after Chemical treatment
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Chassis No. JACUBS522G4497824 Welded and refitted chassis frame piece. Opinion Chemical examination of the chassis number of the vehicle in question revealed that: Welded and refitted chassis frame piece measuring 29" x 6" bears the following number: "JACUBS522G4497824" After receipt of FSL report, a show-cause notice was served upon the petitioner and the matter was placed before the Additional Collector-II, MCC, Peshawar for adjudication, who vide order dated 6- 4-2011, confiscated the vehicle. Being aggrieved, the petitioner filed appeal before the Collectorate of Customs (Appeals), Peshawar, which was dismissed vide order dated 26-8-2011. Dissatisfied with the above said order, the petitioner filed second appeal before the Customs, Appellate Tribunal, Peshawar Bench, which too was dismissed and the orders of confiscation of vehicle were upheld vide order dated 10-7-2012. (iv) Sadaqat Ali and another v. The Collector Customs, Peshawar (Custom Reference No, 43/2013). On 20-9-2011, the Customs Staff of Anti-Smuggling Unit, Abbottabad intercepted a non-duty paid Toyota Hiace Van bearing Registration No, JF4108-Sindh at Muzaffar Abad Road. On demand, the petitioners produced photocopy of registration book but did not produce any other documents regarding legal import/lawful possession of the vehicle. Thus, the vehicle was detained under section 17 of the Customs Act, 1969 and it was examined through FSL, Peshawar, who submitted the following report:-- No's Before Chemical treatment No's after Chemical treatment Chassis No. 0004998 Chassis No. 0004998 Opinion Chemical treatment of the chassis number of the Toyota Hiace Van Registration No, JF-4198 in the case as subject has revealed that its chassis number place has been cut and another iron piece bearing No, 0004998 has been welded on its chassis number place. After receipt of FSL report, the vehicle was seized and the matter was placed before Additional Collector-II MCC, Peshawar for adjudication, who vide order 30-11-2011 confiscated the vehicle. Being aggrieved, the petitioners filed appeal before the Collectorate of Customs (Appeals), Peshawar, which was dismissed vide order dated 24-2-2012. Dissatisfied with the above said order, the petitioners filed appeal before the Customs, Appellate Tribunal, Peshawar Bench, which too was dismissed and the orders of confiscation of vehicle were upheld vide order dated 16-4-2013. (v) Muhammad Fayaz and another v. The Collector Customs, Peshawar (Custom Reference No, 44/2013). On 16-6-2011, the Customs Mobile Squad, Abbottabad, intercepted a Toyota Hiace Van bearing Registration No, PE-2028/Sindh near CMH Abbottabad. On demand, the petitioners did not produce any documents to prove legal import/lawful possession of the vehicle. Thus, the vehicle was detained under section 17 of the Customs Act, 1969 and it was examined through FSL, Peshawar, who submitted the following report:-- No's Before Chemical treatment No's after Chemical treatment Chassis No. LH114-0012595 Chassis No. welded and Refitted piece Opinion Chemical examination of the chassis number of the vehicle in question revealed that: Welded and Refitted Chassis Sheet piece measuring 12" x 3"1-2 bears the following number. "LH114-0012595" After receipt of FSL report, the vehicle was seized and the matter was placed before the Additional Collector-II, MCC, Peshawar for adjudication, who vide order dated 27-10-2011, confiscated the vehicle. Being aggrieved, the petitioners filed appeal before the Collectorate of Customs (Appeals),
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Peshawar, which was dismissed vide order dated 24-2-2012. Dissatisfied with the above said order, the petitioners filed second appeal before the Customs, Appellate Tribunal, Peshawar Bench, which too was dismissed and orders of confiscation of vehicle were upheld vide order dated 16-4-2013. (vi) Anwar Hayat v. The Collector Custom, Peshawar (Customs Reference No, 30/2013) On 12-7-2012, the Staff of Intelligence and Special Checking Squad, Peshawar, intercepted a non- duty paid Toyota Land Cruiser (Prado) Jeep bearing Registration No, JSA-162/Jaffarabad at Motorway Peshawar. On demand, the petitioners did not produce any documents to prove legal import of the vehicle. Thus, the vehicle was detained under section 17 of the Customs Act, 1969 and it was examined through FSL, Peshawar, who submitted the following report:-- No's Before Chemical treatment No's after Chemical treatment Chassis No. VZJ95-0009762 Chassis No. welded and Refitted piece Opinion Chemical examination of the chassis number of the vehicle in question revealed that welded and refitted chassis frame piece measuring 12" x 4/1-2" bears the following number: "VZJ95-0009762" After receipt of FSL report, a show-cause notice was served upon the petitioners and the matter was placed before the Additional Collector-II, MCC, Peshawar for adjudication, who vide order dated 12-7-2012, outrightly confiscated the vehicle. Being aggrieved, the petitioners filed appeal before the Customs Appellate Tribunal, Peshawar Bench, which was dismissed and the order of confiscation of vehicle was upheld vide order dated 23-4-2013. (vii) Collector of Customs v. Haji Shah Muhammad and others (Custom Reference No, 18/2013). On 7-8-2011, the Staff of Customs Mobile Squad No,2 Peshawar intercepted a Daimler Benz bearing Registration No, TLN-221 at Kacha Garhi. On demand, the respondents produced registration book and bill of entry. It is evident from the bill of entry that three units old and used construction machinery Dumper Trucks (Daimler Benz) were imported while the vehicle in question is a Prime Mover (22 wheeler trailer) and the chassis number was also found suspected. Thus, the vehicle was examined through FSL, Peshawar, who submitted the following report:-- No's Before Chemical treatment No's after Chemical treatment Chassis No. 36145610833488 Chassis No. The original chassis number filled with weld material. Opinion Chemical examination of the chassis number of the vehicle in question revealed that: The original Chassis number filled with weld material, and not decipherable. The present chassis number is Re-stamped one. After receipt of FSL report, the vehicle was seized and the matter was placed before Additional Collector-II, MCC, Peshawar, who vide order dated 1-11-2011, outrightly confiscated the vehicle but returned the trailer to its rightful owner. Feeling aggrieved, the respondents filed appeal before the Collectorate of Customs (Appeals), Peshawar, which was dismissed vide order dated 24-6-2012. Dissatisfied with the above said order, the respondents filed second appeal before the Customs, Appellate Tribunal, Peshawar Bench, which was accepted vide order dated 12-11-2012 and the vehicle in question was ordered to be released unconditionally to the respondents. (viii) The Collector of Customs v. Nazakat Khan (Customs Reference No, 23-P/2013) On 21-6-2011, the Staff of Customs Mobile Squad, Abbottabad, intercepted a Toyota Hiace Van bearing Registration No, FDQ-9429 at Goharabad Havelian. On demand, the driver of the vehicle Rafique Mir son of Siddique Mir produced a registration book but did not produce any documents to prove legal import of the vehicle. Thus, the vehicle was detained under section 17 of the Customs Act, 1969 and it was examined through FSL, Peshawar, who submitted the following report:
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No's Before Chemical treatment No's after Chemical treatment Chassis No. LH114-0012034 Chassis No. The original chassis number filled with weld material. Opinion Chemical examination of the chassis number of the vehicle in question revealed that: The original chassis number filed with weld material and not decipherable. The present chassis number is restamped one. After receipt of FSL report, a show-cause notice was served upon the respondent and the matter was placed before the Additional Collector-II, MCC, Peshawar for adjudication, who vide order dated 13-9-2011, confiscated the vehicle. Being aggrieved, the respondent filed appeal before the Collector Customs (Appeals), Peshawar, which was dismissed vide order dated 2-12-2011. Dissatisfied with the above said order, the respondent filed second appeal before the Customs Appellate Tribunal, Peshawar Bench, which was accepted vide order dated 2-11-2012 and the vehicle in question was ordered to be released to the respondent. (ix) The Collector of Customs v. Muhammad Sarwar and another (Custom Reference No, 7/2014). On 26-1-2010, the Superintendent (Customs Preventive Circle, D.I.Khan) intercepted a Toyota Crown Super Saloon bearing Registration No, LWN-.5449 at Darband Road, D.I.Khan. On demand, the respondents produced a registration book showing description of the vehicle as "Toyota Corolla Motor" while physically, it was a "Toyota Crown Super Saloon". Thus, the vehicle was detained under section 17 of the Customs Act, 1969 and it was examined through FSL, Peshawar, who submitted the following report:-- No's Before Chemical treatment No's after Chemical treatment Chassis No. MS65-022990 Chassis No. Re-stamped one. Opinion Chemical examination of the chassis number of the vehicle in question revealed that: The original chassis number filled with weld material and not decipherable. The present chassis number is out of place and re-stamped one. After receipt of FSL report, a show-cause notice was served Upon the respondents and the matter was placed before the Additional Collector-II, MCC, Peshawar for adjudication, who vide order dated 25-3-2011, confiscated the vehicle. Being aggrieved, the respondents filed appeal before the Collector Customs (Appeals), Peshawar, which was dismissed vide order dated 30-5-2011. Dissatisfied with the above said order, the respondents filed second appeal before the Customs Appellate Tribunal, Peshawar Bench, who vide order dated 2-12-2013 passed the following order:- "In view of the fore-stated position, which fits in, in the facts of the present case with no other chassis number found but with an alleged welding and re-stamping, I hereby allow this appeal and set aside the impugned Order-in-Appeal No, 107 of 2011 dated 30-5-2011 and order release of the vehicle in question, however, the learned counsel during arguments admitted that the vehicle is of model 1975 which body was much rustly, therefore, the appellant purchased another body and affixed on the vehicle in question, for which he could not produce any import documents of the replaced body, therefore, the leviable duty and taxes be charged from the appellant in addition to payment of 10% redemption fine of the customs value of the replaced body. The appeal stands disposed of accordingly. " 3. Before this Court renders its opinion on the questions of law raised in the instant References, it would be appropriate to consider the precedents of the superior Courts on the core issue involved in the present References:- "What should be the ultimate result, when an imported vehicle, which on suspicion of being non- duty paid, is seized by custom staff and for verification sent for chemical examination, the report
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whereof, confirms that the chassis number of the seized vehicle was manipulated. " 4. In this regard, this Court would seek guidance from the principles laid down on the matter by the Apex Court, which in some of the leading cases are as follows:-- Muhammad Aftab Khan's case, decided on 25-6-2002 (Civil Petition No, 1809/L of 2002). The Apex Court, after considering the matter, recorded its finding on the forensic report in terms that:-- "The Chemical treatment of the Chassis number of the Hino Prime Mover Regd. No, JA-2796 in the case cited as subject has revealed that its Chassis number Plate has been cut and another iron sheet bearing No, FD178B-11486 has been welded on its Chassis number place. The other argument of the learned that the petitioners should have been associated in the examination process is also devoid of any force. This is a mechanical process which is conducted by the experts. A presumption of truth is attached to the report of the Forensic Laboratory, being an official act. As apparent from the preceding paragraphs the chassis number plate has been cut and another iron sheet bearing No, FD-178B-11486 has been welded on its chassis number place. This clearly demonstrates that the number of the vehicle has been manipulated. (Emphasis provided) Zarshad's case decided on 8-4-2003 (2006 SCM R 973) The Apex Court, after considering the matter, recorded its finding on the forensic report in terms that:-- "The Forensic Science Laboratory after examining the vehicle prepared report on the even date but signed it on 27th July, 2000 confirming that "a piece of chassis frame bearing the present chassis number is replaced and welded"..... "In our opinion the learned High Court instead of substituting findings of facts recorded by the forums under the Customs Act if was of the opinion that without recording evidence report of Forensic Science Laboratory was not admissible then instead of deciding the case finally it should have remanded it to the Tribunal for recording evidence and to decide the case. But the learned High Court has exceeded its jurisdiction by deciding appeal on facts, thus, the impugned judgment is not sustainable". "In view of above legal position both the learned counsel agreed for setting aside of the impugned judgment and remanding the case to the Appellate Tribunal with direction to it to record evidence of the representative of Forensic Science Laboratory to prove contents of the report, dated 27-7- 2000 and also provide opportunity to respondents to cross examine him and then decide the appeal of respondents in the light of material available on record". (Emphasis provided) Fahini Khan's case, decided on 27-2-2006 (Civil Petition. No, 117 of 2006). The Apex Court, after considering the matter, recorded its finding in terms that:- "We do not find any legal or factual infirmity considering that no other evidence was produced by the petitioner to show that the chassis number of the car which was refitted in the vehicle in dispute was not one on which customs duty was paid while one legally imported was on the road or under disuse as per record of Excise and Taxation Department. Consequently, this petition has no merit, hence leave to appeal is declined and the petition is dismissed." (Emphasis provided) Ch. Maqbool Ahmad's case decided on 24-9-2008 (2009 SCM R 226) The Apex Court, after considering the matter, recorded its finding on the forensic report in terms that:- "All the three Laboratories in their reports had concluded that the chassis frame was cut and welded. Keeping in view the request of the petitioner, report of FSL, Peshawar was obtained after associating him in the said proceedings. No objection was filed by the petitioner in regard the
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report obtained from FSL, Peshawar. The contention that the objections had been raised in regard to the said report but the same were not recorded, is contrary to the record. It thus stood established that the chassis frame was found cut and welded. It could, therefore, be safely concluded that the particulars entered in the registration book related to another vehicle especially when the said particulars did not tally with the model etc. Of the vehicle recovered from the petitioner. Obviously, the chassis frame of the smuggled vehicle was manipulated to give it the cover of an older different model vehicle entered in the registration documents. It was also urged that the expert ought to have been summoned so that petitioner could cross-examine him in regard to his opinion/report. Such a request was made before the Tribunal as well which was correctly declined because three different experts had given the same opinion. Even otherwise, presumption of truth is attached to the reports of the FSL laboratories. The contention of the learned counsel for the petitioner that the petitioner is a bona fide fourth purchaser and the vehicle may be released on payment of duties and taxes on the payment of 30% of the duties and taxes under S.R.O. No, 179(I)/2006, dated 2-3-2006, has also no force. Such a request was made before the Honourable high Court as well which was lawfully declined because it is case involving a smuggled vehicle with tampered chassis frame and not a case of a smuggled vehicle with non- tampered chassis frame. Outright confiscation of the vehicle through order-inoriginal under clause 89 of section 156(1) of the Customs Act, 1969 read with S.R.O. No, 574(1)/2005, dated 6-6- 2005 was, therefore, lawfully passed and did not suffer from any illegality. Learned Judge of the high Court correctly answered the proposed question No,1 in the negative and dismissed the Reference Application". (Emphasis provided) Muhammad Jamal Rizvi's case decided on 5-7-2011 (2012 SCM R 169) The Apex Court, after considering the matter, recorded its finding in terms that:-- "When asked, learned counsel had no reply to furnish on the observation so made; however, he admitted that the make, Model, Engine number and other material about the vehicle in question were same as were in the documents noted hereinabove. Scanning of the record reflects that the concerned officers of the Directorate, Customs Intelligence, after transfer of the vehicle in question removed its original number plates bearing No, BB-7271 and affixed official number plates bearing No, GI' 8695 and started using the same unauthorisedly. This fact surfaced when the Nazir of the High Court visited the site in the office of the Directorate where not only the vehicle in question was found; another vehicle, as well, was found parked with the same official number plate and on enquiry no satisfactory reply could be furnished by the Customs officials". (Emphasis provided) Saleh Jan's case, decided on 13-6-2013 (Civil Appeal No, 58-P of 2010). The Apex Court, after considering the matter, recorded its finding in terms that:- "In our opinion once a valid registration book had been produced by the respondent to support his contention that the vehicle was imported according to law, then it was incumbent upon the authorities to have summoned the entire record from the port authorities etc as well as motor registration authority in order to establish the origin of the vehicle in question which they failed to do. It appears that some tampering was done to the chassis number of the vehicle as a result of which it became defaced and this perhaps happened when the vehicle was in the use of the custom authorities. In view of the foregoing circumstances; we would conclude that it could not be established by the custom authorities that the vehicle was a smuggled one. Hence we do not find any defect or material irregularity in the conclusions reached by the Learned lower forums below so as to convince us to interference in the matter. Consequently this Appeal is dismissed".
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(Emphasis provided) Khalil Muhammad's case, decided on 12-2-2013 (Civil Petition No, 1788 of 2012). The Apex Court, after considering the matter, recorded its finding on the forensic report in terms that:-- "Reports of the FSL in Peshawar and Islamabad suggest that "tampering" has taken place with the chassis number, while the learned counsel for the petitioner has not been able to convince the Court on reasons necessitating changes in the chassis number or the frame of the vehicle. In addition, the petitioner could not submit before this Court permission of the competent authorities in the Excise and Taxation department for changing the chassis number or welding a number different than the original number engraved on the frame". (Emphasis provided) 5. Taking guidance from the decisions of the superior Courts and the rampant abuse of obtaining…
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