2008 PTD 1689

Citation2008 PTD 1689

CourtCustoms, Central Excise and Sales Tax Appellate Tribunal

DR. RIAZ MEHMOOD, MEMBER (JUDICIAL).--- The appellant has assailed, in this appeal the Order-in-Appeal No.462 of 2006, decided on 22-11-2006, whereby the learned Collector (Appeals) had upheld the order of the learned Additional Collector (Adjudication), Multan, who vide Order-in-Original No.421 of 2006, decided on 8-7-2006 had confiscated the Truck No.TKJ-247. The appellant had alleged in the appeal that he is Special Attorney of Haji Ahmad Khan resident of Sakhar, who was the owner of Truck No.TKJ-247. The appellant/Special Attorney had purchased the truck from Haji Ahmad Khan on instalments. He had himself been plying truck for some time and when he became ill, he employed Ameer Ali resident of Quetta as the Driver. Ameer Ali loaded 60 sacks of chilies and 470 cans of some liquid from the Goods Stand of Bashir and Naseer Goods Company, Hazar Ganji Truck Stand, Quetta to be transited to D.G. Khan through "bilties from 55-57, 59-71 and 49. The rental was Rs.28,000. The driver himself, as usual, sat aside and the labourers loaded the truck. The cans, being heavier, were placed below and the chilies being lighter above the cans. The Customs Authorities apprehended the truck at D.G. Khan. The Customs Authorities assured that the truck could be released, but thereafter they confiscated the truck that the "bilties" were fictitious and there was no truck stand in the name of Bahsir and Naseer at Quetta and there was only a shop of tryes there in this name. They confiscated the truck alleging that the smuggled goods were being transported through this truck. The learned Adjudicating Authority vide Order-in-Original No.421 of 2006, confiscated the truck. The appellant filed an appeal before the learned Collector (Appeals), who vide Order-in-Appeal No.462 of 2006, decided on 22-11-2006, dismissed the appeal. The appellant had further pleaded in the appeal that he had appeared before the learned Adjudicating Authority, but he was not heard. The Customs Authorities had obtained the thumb-impression of the driver and the cleaner Gul Zaman on some blank papers. Hence, this appeal.

2. It has been urged, in the appeal, that the driver has nothing to do with the loading of the luggage. He could point out the Bashir and Naseer Goods Agency, Quetta. He could also take the Customs Authorities if they desired to Haji Abdul Ghafoor, the proprietor of the Truck Stand. It has been prayed that the truck be released.

3. The Department filed parawise comments. They have taken the same plea which was taken in their comments filed before the learned Adjudicating Authority as also before the learned Collector (Appeals).

4. Arguments were heard. The learned counsel argued that the truck was not in any way engaged in the smuggling of some contraband goods. He contended that the truck could not be confiscated and cited Haji Abdul Razaq v. Pakistan through Secretary Finance, Islamabad PLD 1974 SC 5. He further submitted that the Customs Tribunal had made Reference No.144 of 2006 in the Lahore High Court, Lahore and it was decided on 6-10-2006. Similar point was the issue in this reference and the Hon'ble Lahore High Court, Lahore had released the carrier. The learned counsel further cited the decisions of the learned Member of the Tribunal in C.A. No.107/LB of 2007, C.A. No.23/LB of 2007 and C.A. No.17/LB of 2007.

5. The representative of the Department defended the impugned orders. He submitted that the truck has rightly been confiscated under S.R.O. 487(I)/07, dated 9-6-2007 and 574(I)/05, dated 6-6-2005 of the C.B.R. He further submitted that all the "bilties" etc. was an afterthought plea.

6. I have carefully gone through the record. The Department had developed the case during investigation, that Ameer Ali, driver had got a statement recorded on the spot that he was the owner of the truck and he had purchased the same through instalments. He was inserted in early clearance of the instalment. Petrol of Irani origin was abundantly available in Quetta and people brought that petrol from Quetta and sold in D.G.. Khan. He also wished to earn easy and quick profit and as such purchased 470 cans of petrol from Quetta and intended to sell the same in D.G. Khan. The cleaner Gul Zaman of the Truck also got statement recorded that Ameer Ali was the owner of the truck and he purchased and loaded Irani petrol. The Department had collected a sample from the petrol and sent to the laboratory for examination and report was returned that it was not a Pakistani origin petrol.

7. When the show-cause notice was issued to Ameer Ali, the truck driver and Gul Zaman, the cleaner, the appellant Muhammad Ramzan on his own appeared before the learned Adjudicating Officer. He urged that there was no petrol available in remote areas of D.G. Khan. There was a great dearth of petrol and people in deep areas could not even get their bikes filled. Different people brought Pakistan origin petrol from Quetta and supplied and sold in Mufassal areas of D.G. Khan. The appellant and different people produced about 16 "bilties" in the name of different purchasers who had purchased different number of cans.

8. The department did not believe these billies and considered them as afterthought. According to the Customs Authorities, the truck driver had made a statement that he was owner of the truck and petrol and as per report it was not a petrol of Pakistani origin. The Department further had taken the plea that during investigation/enquiry a responsible officer had gone to Quetta and tried to locate Bashir and Naseer Goods. Transport Company, but could not find any. There was only a trye shop in this name. The said officer also contacted the General Secretary of the Truck Association and asked him about the whereabouts of Bashir and Naseer Goods Transport Company, but even the General Secretary showed his ignorance.

9. It has all along been the plea of the appellant that he could take the Customs Authorities to Bashir and Naseer Goods Transport Company. The Customs Authorities had sold the petrol in an open auction for Rs.6,10,000.

10. Ameer Ali, the driver, if at all was the owner of the truck, the petrol and chillies had not filed any appeal against Order-in-Original, it was Muhammad Ramzan who had filed the appeal before the learned Collector (Appeals) and has also come up in appeal before this Tribunal.

11. There is also another aspect of the appeal that it had been filed by Muhammad Ramzan, the Special Attorney of Haji Ahmad Khan, in whose name, as per registration book, the truck was registered. There is no document that Ameer Ali had purchased the truck from Haji Ahmad Khan, the last owner. Apparently, there is no conflict of interests between Muhammad Ramzan, Special Attorney and Haji Ahmad Khan, owner of the truck. Copy of the Special Attorney is on record that the truck had been handed over to Muhammad Raman son of Haji Agha Muhammad. During hearing of this appeal Haji Ahmad Khan, through Mr. Mohsin Hamdani, the learned counsel of Muhammad Ramzan has made an application to be substituted as the appellant.

12. It has been held by the Hon'ble Supreme Court of Pakistan PLD 1974 SC 5, that a truck could not automatically be connected with the carrying of smuggled goods unless a proper link was proved. The Department has tried to set up a case that Ameer Ali, driver was the owner and had transported the goods intentionally. I am not satisfied with the case set up by the Department in this respect. It has all along been Muhammad Ramzan, who has been alleging himself as the attorney of the owner. It is not proved that the proprietor of the truck was intentionally engaged in smuggling of the petrol. The respected case-law PLD 1974 SC 5 and decision of the Hon'ble Lahore High Court, Lahore in the aforesaid Reference No.144 of 2006 has to be followed. By a composite order Haji Ahmad Khan, the owner of the truck is substituted as the appellant and the appeal would be read as Haji Ahmad Khan through Muhammad Ramzan, the attorney and the appeal is accepted and the impugned order-in-original and order-in-appeal are hereby set aside to the extent of confiscation of the truck. The Customs Authorities are directed to release the truck in favour of Haji Ahmad Khan subject to his furnishing surety bond to the tune of Rs.10,00,000 that he would hand over the truck to any other lawful owner, if declared by a competent Civil Court.

C.M.A./52/Tax(Trib.) Appeal accepted.