Sultan Muhammad vs Collector Custom

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Custom Reference No.26/2010.

JUDGMENT

Date of hearing...............20-11-2014.................

Petitioner(s) by Mr. Ajoon Khan, Advocate. Respondent(s) by Mr. Muhammad Ali, Advocate.

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 vs. The Collector Customs, Peshawar and another).

ii. Custom Reference No. 39/2011 (Abdul Waheed Khan vs. The The Collector Customs and others).

iii. Custom Reference No. 33/2012 (Rafiullah and another vs. The Collector Custom).

iv. Custom Reference No. 43/2013 (Sadaqat Ali and another vs. The Collector Customs, Peshawar).

v. Custom Reference No. 44/2013 (Muhammad Fayaz and another

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

vs. The Collector Custom, Peshawar).

vi. Custom Reference No. 30/2013 (Anwar Hayat vs. The Collector Custom, Peshawar).

vii. Custom Reference No. 18/2013 (Collector of Customs vs. Haji Shah Muhammad and others).

viii. Custom Reference No. 23-P/2013 (The Collector of Customs vs.

Nazakat Khan).

ix. Custom Reference No. 7/2014 (The Collector of Customs vs.

Muhammad Sarwar and another).

2.The peculiar facts leading to the filing of aforementioned Custom References are as under:

i. Sultan Muhammad vs. 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 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 TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

Laboratory, Peshawar (“FSL), who submitted the following report:

Before Chemical treatment After Chemical treatment Chassis No. LN1309-0092719 Chassis No. Piece measuring 9” x 41⁄2” 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 41⁄2” 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 & 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 & 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.

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

ii. Abdul Waheed Khan vs. The Collector Customs and others (Custom Reference No. 39/2011).

On 25.5.2010, the Staff of Customs

Intelligence & 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 treatment After 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:

“EE90-0036992”

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 TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

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 vs. The Collector Custom (Custom Reference No.

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 Chassis No. JACUBS522G4497824 Welded & 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”

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

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 iv. Sadaqat Ali and another vs. 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. JF- 4108-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 TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

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.

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

v. Muhammad Fayaz and another vs. The Collector Custom, 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 TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

Customs (Appeals), 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 vi. Anwar Hayat vs. The Collector Custom, Peshawar (Custom Reference No. 30/2013) On 12.7.2012, the Staff of Intelligence & 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 & 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”

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

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 vs. 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:

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

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.

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

viii. The Collector of Customs vs. Nazakat Khan (ustom 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 S/o 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:

No’s Before Chemical treatment No’s After Chemical treatment Chassis No.LH114-0012034 Chassis No. The original chassis Number filed 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 TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

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 vs. Muhammad Sarwar and another (Custom Reference No.

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.

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

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

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

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 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:

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

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 SCMR 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 TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

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)

Fahim 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)

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

Ch. Maqbool Ahmad’s case decided on 24.9.2008

(2009 SCMR 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 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 bonafide 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(1)/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 TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

frame and not a case of a smuggled vehicle with non-tampered chassis frame. Outright confiscation of the vehicle through order-in- original 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 SCMR 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. GP 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:- TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

“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”.

(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 “tempering” 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)

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

5.Taking guidance from the decisions of the superior Courts and the rampant abuse of obtaining documents for vehicles, having “tampered” chassis numbers from the Motor Vehicle Authorities, prompted the Federal Government to introduce strict measures, including prohibition of auction of vehicles having “tampered” chassis numbers. The most prominent being Circular No. 10(1)AS/2004 dated 11.12.2007, which read as under:-

“GOVERNMENT OF PAKISTAN

REVENUE DIVISION

FEDERAL BOARD OF REVENUE.

C.No.10(1)AS/2004 Islamabad, the 11th December, To,

The Collector of Customs, (Preventive), Custom House, Karachi.

The Collector of Customs, Port Qasim, Karachi.

The Collector of Customs, Custom House, Rawalpindi/Peshawar/Hyderabad/ Multan/Sambrial/Faisalabad/Lahore/ Quetta.

Subject: DISPOSAL OF TAMPERED

CONFISCATED VEHICLES.

I am directed to enclose a copy of Cabinet Division’s O.M. No. 36/P-11/2006 (ECC-44/3/2006), dated 29.11.2007 on the subject noted above and to state that steps taken towards the implementation of ECC decision in case No. ECC-44/3/2006, dated 03.03.2006 on disposal of confiscated tampered TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

vehicles may be communicate to the Board. The decision is reproduced as under:-

(i)Buses and vans may be utilized for pick and drop of officers and staff working in CBR headquarters and its field formations;

(ii)Other vehicles (cars, jeeps etc) may be sold to the Government/semi- Government departments on the highest prices offered by them; and (iii)Any left over vehicles may be offered free of cost to the Government owned educational, medical and scientific institutions, as recommended by the respective Ministries, on first come first served basis.

2.It is requested to provide up-to-date data about disposal of confiscated tampered vehicles since the decision bearing No. 44/3/2006, dated 03.03.2007 was made by the ECC. All those vehicles which may have been sold at token/nominal price as consequence of Board’s decisions may also be included.

Sd/-- (Dr. Muhammad Adnan Akram) Second Secretary (Anti Smuggling & Coord)” (Emphasis Provided)

In addition to the above, another S.R.O.

568(1)/2008, dated 11-6-2008 was also issued, which read as under:-

“The smuggled vehicles, other than having tampered engine or chassis numbers, which had been seized or confiscated on or before the 31st May, 2008, shall also be allowed release on payment of leviable amount of duties and taxes in addition to redemption fine which shall be equal to thirty per cent of the CIF value thereof, provided that the customs-duty, taxes, fine and penalty etc. so levied thereon are paid on or before the 30th June, 2008” (underline supplied)

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

The above S.R.Os, clearly indicates the unflinching policy of the Federal Government (“Policy”) not to allow/release, under any circumstances, those vehicles having a “tampered” engine or chassis numbers.

6.Moving to the common “questions of law” raised in the instant nine Custom References, the same are as under:-

1)Whether welding and refitted of old chassis plate of the same vehicle is having a penal provision in absence of any proof of smuggling?

2)Whether there is any section of law in the Custom Act to show that if any vehicle had a welded and refitted chassis number should be smuggled and non-duty paid?

3)Whether FSL report is not sufficient proof that the vehicle is a tampered vehicle?

4)Whether the said vehicle come under section 2(s) of the Custom Act after providing the registration document?

5)Whether the change of engine of vehicle with permission of MRA is not permissible under law and what would be its consequences on fate of case?

6)Whether by producing the relevant documents and explanation of the accident of the vehicle, the owner has been able to discharge his onus in terms of Section 187 of the Customs Act?

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

7)Whether the custom authority has jurisdiction to confiscate the local purchase vehicle from the authorized dealer of the country?

8)Whether the custom authority has jurisdiction to seize and confiscate locally registered vehicle registered by the competent authority after requisite requirement?

9)Whether the Custom authority has jurisdiction to seize/confiscate the vehicle which is seized by unauthorized person?

7.On reviewing the findings recorded by the Apex Court in the aforementioned judgments and the Policy of the Federal Government on the matter, it would be safe to render our opinion on the “questions of law”, raised and stated herein above, in terms that:

i. Revenue is only authorized to seize and confiscate imported vehicles, which are non-duty paid.

ii. Locally manufactured vehicles are beyond the legal mandate of the Revenue under the Act.

iii. A presumption of truth is attached to the report of Forensic Science Laboratory being a result of an official act.

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

iv. In case, serious infirmities appear on the record, which cast reasonable doubt on the presumption of truth attached to the FSL report, evidence may be recorded of the official, who carried out the forensic examination and rendered the report, providing opportunity of cross-examination to the owner of the vehicle OR direct the re-examination of the vehicle by another FSL.

v. In case of repeated forensic examinations confirms tampering of the chassis number of the vehicle, then there is no requirement for the “maker” of the report to be summoned and cross-examined by the owner.

vi. “Tampering” of chassis number of the vehicle, include any alteration of the original chassis number of the vehicle, whether manual or otherwise OR cutting a piece of the frame and re-welding another piece thereon OR chassis number filled with welding material and then restamped.

vii. Even a positive FSL report of a vehicle in use of the custom authorities would create a doubt on TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

the presumption of truth altered to the said report that the tampering took place when the vehicle was being used by the custom authorities.

viii. Tampering of chassis number as a result of an accident of the vehicle could only be a valid ground, if the same was reported to and confirmed by the Motor Vehicle Authorities under Section 33 of the Motor Vehicle Ordinance, 1965.

ix. Public auction of vehicles having tampered chassis have been prohibited and are liable to be confiscated.

x. The confiscated vehicles having tampered chassis numbers are only allowed for use by Government departments on payment of nominal/ token prices.

xi. Section 6 read with Section 7 of the Customs Act, 1969 clearly provides for all officers of Central Excise, Police and the Civil Armed Forces to assist the Custom Officers for carrying out their functions under the Act. In this regard, even if the initial detection of the vehicle is carried out by any other person and TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

brought to the attention of the customs officer, who actually seized the goods and prepared the recovery memo, substantial compliance of the provisions of the Act, is considered fulfilled. In similar circumstances, Minhajuddin’s case (2011 PTD 862) decided by this Court, which was confirmed by the Supreme Court, reiterated the said principle in terms that:

“After realizing the presence of foreign currency, the ANF staff referred the petitioner to the Customs Officials present on the adjacent counter who under the Act of 1969 completed the process of recovery and then registered the case under the relevant provisions of Customs Act. The first detection by the ANF staff has never been denied by the Customs officials as this very fact has been brought in the original order of confiscation, recovery memo that the recovery of foreign currency was effected by the Customs Authorities with the help of officials of ANF. So, this fact has been established on the record that the recovery was effected from the petitioner by the Customs officials and not by the ANF staff, so, the question of application of section 6 of the Act, 1969 does not arise in the circumstances of the case”.

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

On reviewing the facts of the aforementioned References and this Court’s opinion on “questions of law” enunciated herein, it is noted that nine References can be divided into two categories of References:

First, Reference Nos. I to VI, where the worthy Appellate Tribunal has not allowed the release of the vehicles to its owners, as per confirmed FSL reports of the “tampered” chassis or engine numbers of the vehicles. Thus, the impugned decision requires no interference, being in accord with the settled principles explained, hereinabove.

Second, Reference Nos. VII to IX, wherein the worthy Tribunal has released the vehicles, despite clear FSL reports of “tampered” chassis numbers of the said vehicles. These decisions warrant correction. Any manipulation of the chassis number of the vehicle, including he cutting of chassis plate, the removal thereof and welding another piece having the chassis number thereon or any other mode, whereby the original chassis number of the vehicle is altered, amounts to “tampering”. Especially, when the owner was unable to explain and justify the said manipulation of the chassis number.

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

Presenting documentation, relating to the said “tampered” vehicle from the Motor Vehicle Authority, without specific approval for the alteration in the chassis of engine number, as envisaged under Section 33 of the Motor Vehicle Ordinance, 1965 (“Ordinance”) would be of no legal avail.

Moreover, allowing a vehicle, having “tampered” chassis number, even with registration book from the Motor Vehicle

Authority, would surely offend and abuse the provisions of the Act/Ordinance and the Policy of the Federal Government reflected in Circular No.

10(1)AS/2004 dated 11.12.2007 read with SRO No.

568(1)/2008, dated 11-6-2008.

8.Before parting with this judgment, it would be important to note that there are judgments of this Court which are at variance with the judgments of the Apex Court, discussed hereinabove. In view of the clear principles laid down by the Apex Court, it would not appropriate for this Court to follow the contrary views held in the case decided by this Court as is the command and mandate of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution”).

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

9.Accordingly, for the reasons stated herein above, this Court holds that:

i. Custom Reference No.26/2010 (Sultan Muhammad vs. The Collector Customs, Peshawar and another) is answered in the Negative.

ii. Custom Reference No. 39/2011 (Abdul Waheed Khan vs. The The Collector Customs and others is answered in the Negative.

iii. Custom Reference No. 33/2012 (Rafiullah and another vs. The Collector Custom) is answered in the Negative.

iv. Custom Reference No. 43/2013 (Sadaqat Ali and another vs. The Collector Customs, Peshawar) is answered in the Negative.

v. Custom Reference No. 44/2013 (Muhammad Fayaz and another vs. The Collector Custom, Peshawar) is answered in the Negative.

vi. Custom Reference No. 30/2013 (Anwar Hayat vs. The Collector Custom, Peshawar) is answered in the Negative.

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

vii. Custom Reference No. 18/2013 (Collector of Customs vs. Haji Shah Muhammad and others) is answered in the Positive.

viii. Custom Reference No. 23-P/2013 (The Collector of Customs vs.

Nazakat Khan) is answered in the Positive.

ix. Custom Reference No. 7/2014 (The Collector of Customs vs.

Muhammad Sarwar and another) is answered in the Positive.

The office is directed to send copy of this judgment under seal of the Court to the Customs, Federal Excise and Sales Tax Appellate Tribunal, Peshawar.

Dated: 20.11.2014

JUDGE

JUDGE

*Nawab Shah*

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Custom Reference No.33/2012.

JUDGMENT

Date of hearing...............20-11-2014.................

Petitioner(s).................................................

Respondent(s)..............................................

YAHYA AFRIDI,J.- For reasons recorded in the connected Custom Reference No. 26/2010 (Sultan Muhammad vs. The Collector Customs,

Peshawar and another), this Custom Reference is answered in the Negative.

Dated: 20.11.2014

JUDGE

JUDGE

*Nawab Shah*

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Custom Reference No.22/2012

JUDGMENT

Date of hearing..............20-6-2013................................

Petitioner(s).............................................................

Respondent(s)...........................................................

YAHYA AFIRDI, J.- Tila Muhammad and 18 others, petitioners have filed this Custom Reference seeking this Court’s opinion the following points of Law:

Whether the seizure of the goods was not illegal and not maintainable, as notice under section 171 of the Customs Act was not issued nor notice under section 168 of Customs Act was followed?

Whether the local police could lay hand on the goods so seized from the vehicle on a registered route, which is not closed to the unauthorized border?

Whether the redemption fine could be imposed on the goods as per order of the authorities?

Whether seized goods are not un- notified goods and does not come within the purview of the Customs Act?

Whether the vehicle is not a public transport and redemption fine imposed on the vehicle is not against the Customs Act itself?

Whether the seizure made by un- authorized person is not liable to be returned un-conditionally to the owner of the goods.

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

day, the matter was argued at some length. Without passing any findings on the other questions of law, lest it may prejudice the case of the parties, it would be important to first decide the last question of law relating to bias;

“That the impugned judgment and order is illegal and void-ab-initio as the Presiding Officer who heard, adjudicated and delivered the impugned judgment was actively involved in the investigation processes of the present case and thus on the basis of the principle that no person shall be a judge of his own cause, the impugned judgment and order is liable to be set at naught.”

It is noted that there were two Show Cause Notices, which have been decided by the tribunal;

the first one was issued by Mr. Sher Nawaz, the then Collector and the other by Mr. Zulfiqar-A-Kazmi, the then Additional Collector. It is also noted that the impugned order of the Tribunal has been passed by the Worthy Member (Technical), namely, Mr.

Sher Nawaz, who was also the author of Show Cause Notice No.Cus/Reb/Tor/8152/2006/8869 dated 3.10.2006. In view of this crucial fact, the issue of ‘bias’ would become very relevant for determination.

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

4.The term “bias” in its ordinary meaning has been described in terms that:- Concise Oxford English Dictionary “bias. inclination or prejudice for or against one thing or person”.

Webster’s New Explorer Encyclopedic Dictionary

“a. Bent Tendency, b. an inclination of temperament or outlook; especially: a personal and sometimes unreasoned judgment: Prejudice: c. an instance of such prejudice”

Black’s Law Dictionary

‘Inclination; prejudice; predilection.’

5.The judicial trend on the objection relating to ‘bias’ of a Presiding Officer of a legal forum in the United Kingdom has been very eloquently summarized in ‘Administrative Law’ by H.W.R.Wade & C.F.Forsyth, in terms that :- “Much confusion has been caused in the past by the concurrent use of two differently formulated tests for disqualifying bias. Many judges have laid down and applied the ‘real likelihood’ formula, holding that the test for disqualification is whether the facts, as assessed by the court, give rise to a real likelihood of bias; and this test has naturally been emphasized in cases where the allegation of bias was far-fetched. Other judges have employed a ‘reasonable suspicion’ test, emphasizing that justice must be seen to be done, and that no person should adjudicate in any way if it might reasonably be thought that he ought not to act because of some personal interest.”

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

The former test was the innovation of Lord Goff, while speaking for the House of Lords in R.V.Gough (1993) A.C. 646 upon the later test, earlier viewed by Lord Denning, as he expressed, while heading the Court of Appeal in the celebrated judgment of R.V. Camporne Justices ex p. pearce

(1995) 1 QB 41.

6.The jurisprudence has much more developed in the European Union, where it is noted that Article 6(1) of the European Convention on Human Rights insists that the appearance of ‘bias’, even if there is no actual ‘bias’, is sufficient to declare the said order illegal.

7.Now to our jurisdiction, the test of bias has finally been laid down by the apex Court in Muhammad Nawaz Sharif’s case (PLD 2009 S C

284)in terms that:-

“..............AIR 1959 SC 1376

(Gullapalli Negeswararao etc. V.

The State of Andhara Pradesh and others) and AIR 1987 SC 2386 (Ranjit Thakur V. Union of India and others. In the former judgment, it was held that “no man shall be a judge in his own cause; justice should not only be done but manifestly and undoubtedly seem to be done; if a member of a judicial body is subject to bias (whether financial or other) in favour of, or TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

against, any party to a dispute, or is in such a position that a bias be assumed to exist, he ought not take part in the decision or sit on the Tribunal”. While in the latter judgment test of likelihood of bias was noted as follows:- “....tests of the likelihood of bias what is relevant in the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, “am I biased?”, but to look at the mind of the party before him...............

What is the test to determine the existence of bias? To our mind and from the analysis of the above noted authorities, and facts, the test of bias is, the thought of a prudent/reasonable man in the given circumstances of a case. If a man considers the facts and circumstances of a case demonstrating and to be creative of bias in the mind of a judge and the real danger of having no fair trial at the hands of the aforesaid judge is apparent and existing, then the question would be relevant, otherwise it would not be allowed to work, when a person having mere apprehension on the basis of flimsy grounds, suppositional thoughts, surmises not a reality, with ulterior motives and making pretences so as not to got justice from a particular judge, with a view that he might be able to get the case transferred on that basis to the judge of his own choice or to the selective judges, there being no likelihood of bias, or there being no real of unfair trial and so many other reasons which cannot be exhaustively encompassed.”

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

(underlining is provided by us)

8.Now, when we apply the test of ‘bias’ as finally formulated by the apex Court in the aforementioned judgment to the facts of the present case, it is noted that a ‘reasonable man’ surely would not be comfortable in pleading his case before a Tribunal, which is presided by the same officer who had initiated the complaint against him.

Thus, ‘subject matter bias’, cannot be ruled out. In order to bring in ‘transparency’ and to ensure that ‘principle of natural justice’ are met, the impugned order cannot be sustained in the eyes of law.

9.Before parting with this judgment, it be noted that the Revenue has also filed Appeals against the decision of the Worthy Tribunal, which was authorized by Mr.Sher Nawaz for reducing penalties, which according to them were not permissible under the enabling provisions of the law. Thus, ‘personal bias’ cannot be imputed upon the Worthy Presiding Officer.

10.Accordingly, for the reasons stated hereinabove, these References are partially accepted, the impugned judgment dated 28.10.2010 is set aside and the Appeals of M/S Zeeshan Trading TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.

Corporation shall be deemed pending before the Customs Appellate Tribunal, Peshawar Bench, which are to be decided in accordance with law.

The office is directed to send the copy of this judgment under seal of the Court to the Customs, Federal Excise and Sales Tax Appellate Tribunal, Peshawar.

Dt.20-2-2014.

JUDGE

*M.Gul* JUDGE

TRIAL MODE − a valid license will remove this message. See the keywords property of this PDF for more information.