2010 PTD 949
HAFIZ AHSAAN AHMAD KHOKHAR, CHAIRMAN/MEMBER (JUDICIAL).--- 1. This appeal is directed by Raja Danish Mehmood (hereinafter called the appellant) against Order-in-Appeal No.263/2008, dated 16-10-2008 passed by Collector Customs, Sales Tax and Federal Excise (Appeals), Rawalpindi (hereinafter called the respondent).
2. Brief facts of the case are the staff of Directorate General of Intelligence and Investigation (FBR) intercepted a Toyota Land Cruiser (PRADO) bearing Registration No.KHAMBAL-1 (B-0052-Sindh), Chassis No. KZJ95-0058719 Engine No. IKZ-0485743 (2942 CC) on 3-8-2007 from the possession of the appellant. On demand, he could not produce any evidence documentary or otherwise regarding its legal import and lawful possession except a registration book issued by the MRA, Karachi. As per registration book, original registration file had been returned to the owner after registration of the vehicle. Therefore, the owner promised to produce the same within few days. Hence the vehicle was detained under proper documentation on 3-8-2007, under section 17 of the Customs Act, 1969 for further verification of import documents and confirmation of payment of duty/taxes. Subsequently the driver/owner produced registration file of the vehicle on the basis of which the vehicle was got registered. As per produced documents the detained vehicle was cleared by the Collector of Customs (Appraisement), Karachi under Amnesty Scheme vide Assessment Sheet dated 15-3-2000 and verified vide letter No.ITC-88/2000-VIII, dated 10-11-2005. The documents produced were sent to the Deputy Collector (Group-V), Collectorate of Customs (Appraisement), Karachi by the Directorate General of Intelligence and Investigation (FBR), Islamabad vide letter No. 1(71)DGC/Ops/2007/4219, dated 4-8-2007 for verification/confirmation. In response the Deputy Collector (Group-V), Collectorate of Customs (Appraisement), Karachi vide letter SI/Misc/ 01/2007-V, dated 26-9-2007 reported that the requisite documents are fake/forged. The vehicle was, therefore, detained on 3-8-2007 under proper documentation and a notice under section 26 of the Customs Act, 1969 and the vehicle was formally seized under section 168 of the Customs Act, 1969 on 22-8-2007 and notice under section 171 ibid was also served. On receipt of a seizure report from the seizing agency, a proper show-cause notice was issued to the appellant. The case was adjudicated upon by the respondent No.1, who ordered for confiscation of the seized vehicle.
3. Being aggrieved of the Order-in-Original No.35 of 2007, dated 24-11-2007, appeal was preferred before Collector (Appeals), Rawalpindi/respondent No.1, who vide order dated 26-3-2008 dismissed the appeal and upheld the Order-in-Original No. 35/2007, dated 24-11-2007. Therefore the appellant filed an appeal before this Appellate Tribunal who vide its judgment earlier dated 17-6-2008, observed as under: -
"Under the circumstances, it was difficult for this Court to reach at conclusive conclusion. Therefore, I feel that this case be sent back to the Collector (Appeals) Rawalpindi who shall summon the relevant record and himself verify as to whether the appellant had deposited the duty in the Government Treasury and whether the vehicle was cleared under the Amnesty Scheme as alleged by the appellant."
4. In the light of direction of this Appellate Tribunal, respondent No.1 again fixed the case for the hearing after giving the notices to the parties on 9-7-2008. Finally, he again passed the order against the appellant vide Order No.263/2008, dated 16-10-2008, he concluded in the followings:-
"On receipt of the copy of judgment of the Honourable Appellate Tribunal, hearing in the case was fixed on 9-7-2008. In the light of direction of the Appellate Tribunal the Collectorate of Customs (Appraisement) was requested to verify whether the appellant had deposited the duty in the treasury and whether the vehicle was cleared under the Amnesty Scheme by the appellant. The Collectorate of Customs (Appraisement) provided a copy of the relevant register maintained in the Accounts Branch, which does not indicate any entry of the said amount and cash number entry during the month of March, 2000. The Collectorate has again reiterated that the clearance of the said seized vehicle against payment of duty and taxes is not verifiable. In view of the above position, the Order-in-Appeal No.175/2008, dated 26-3-2008 is upheld."
5. Feeling aggrieved from the said Custom Order-in-Appeal No.263/2008, the appellant has filed against instant the appeal before this Tribunal.
6. Mr. Hameed Azam Jah, Advocate, learned counsel appearing for the appellant argued at length stated that the respondent passed the order by ignoring the fact that the clearance of the seized vehicle was made only after- the payment of duty and taxes, but while passing the impugned order he only relied on the reports of Collectorate of Appraisement Karachi that the duties and taxes, were not verifiable, therefore, the impugned order is unjust, unlawful and needs to be set aside. He further contended that the record of cash/account of the branch of Collectorate had verified the payment of duty/taxes amounting to Rs.7,27,652 vide additional bill in the Government Treasury under cash number 217, dated 15-3-2000, and the same duties and taxes were again verified by the Superintendent Cash Custom House Karachi. He further contended that the show-cause notice was issued in the mechanical fashion without application of judicial mind and even the sections invoked in the show-cause notice to the case of appellant could not be attracted, finally he prayed that the impugned order passed by the respondent No.1 be kindly set aside and the seized vehicle be returned to appellant in the interest of justice, he relied upon in support of his contentions 1991 MLD 1182 and 2002 SCJ page 301.
7. Mr. Agha Sabir Hussain, Senior Intelligence Officer appeared on behalf of respondents vehemently opposed the assertions of learned counsel for the appellants, he submitted that the Collectorate of Customs, Appraisement, Karachi provided a copy of relevant register maintained in the account branch to the Collector Appeals/Respondent No.1 which does not indicate any entry of the said amount and cash number of entry during the month of March, 2000. He further submitted that the respondent has upheld his previous Order-in-Appeal 175/2008, dated 26-3-2008 on the report of Appraisement Collectorate of Karachi. He, at the end, supported the impugned orders of the forums below and requested that the appeal may kindly be dismissed.
8. I have heard the arguments Advanced by both the parties and have also gone through the record minutely with the assistance of both the sides.
9. The entire case of the appellant is that he had deposited the amount in the bank, as duties and taxes, of said vehicle and he has possessed the original bank challan. During the pendency of the appeal, it was volunteered on behalf of the appellants that they are ready and willing to get the receipts of tax (allegedly paid by them) from the concerned quarter at their own expense. This application was conceded by the respondent's representative. The Bench allowed the request of appellant and it was proposed that the original documents/challan produced by the appellant in respect of the said vehicle be again verified from concerned office of Karachi jointly by the appellant and the respondent. In pursuance of the order of bench dated 18-2-2009, both the parties visited the concerned office at Karachi. Later on, a letter No. C. No.SI/Misc/01/ 2006-V, dated 19-3-2009 containing verification report received from the Collectorate of Customs (Appraisement), Karachi, was produced in Court, wherein it revealed the then Appraising Officer, Mr. Muhammad Anwar Khan, also disowned his signature on all the duty bills, by stating that his signature of the said duty bills are false and fake. Learned counsel for the appellant again disagreed with the verification report and maintained that the appellant had deposited the amount in the Bank, as he has possessed the original Bank challan of the same. The Bench even after receiving the report from the Appraisement Collectorate of Karachi, asked the learned counsel for the appellant that if he has the desire, the said Appraising Officer, could be called in the Court at the expense of the appellant to confirm the authenticity of the signature. On this learned counsel for the appellant sought some time for consultation with his client. Sufficient opportunities were provided to the counsel for the appellants to consult with his client on this point. Lastly on 26-5-2009, the learned counsel for the appellant appeared and informed the Court that his client has not agreed with the proposal of calling the Appraising Officer, so the case may be decided on merits.
10. Thrust of the arguments of learned counsel of the appellant is only on the basis of the paid duty/bills and bank challan, but this could not be a single ground to substantiate the claim, there are other formalities as well which have to be considered, including the record of the vehicle lied with the Collectorate of Appraisement Karachi. The verification letters issued from the Collectorate (Appraisement) Karachi dated 9-8-2007, 26-9-2007, 24-1-2008 and 19-3-2008 stated that the duty bills of the appellant are fake and forged, so much so the then Appraising Officer, Mr. Muhammad Anwar Khan, has also disowned his signature on the original duty bills of the appellant. Further the account branch to the Collectorate of Appraisement Karachi also does not indicate any entry of the said amount and cash number entry during the month of March, 2000, further the duty and taxes involved on the seized vehicle as per calculation sheet, were Rs.16,26,975 in the year 1999 whereas, the bill produced by the appellant showed the deposit of Rs.8,00,883 which it self shows big contradictions of applicable duty and taxes at that relevant time.
11. In view of the above, I am of considered view, that the alleged duty bills, as paid by the appellant are fake and forged, the record of the said vehicle also not available in the Appraisement Collectorate of Karachi and further the appellate has failed to rebut the contents of the letters, of Model Collectorate of Customs Appraisement, Karachi. Therefore, I am fortified by judgment of Honourable Lahore High Court Lahore titled as 2008 PTD 1239 Ch. Maqbool Ahmed v. Customs, Federal Excise and Sales Tax Appellate Tribunal and 3 others, where in their lordships have held that the vehicles which are smuggled with tampered chassis frame are not only source of loss to the National exchequer but are securities threat as well. Further I am fortified by the judgment of Honourable Lahore High Court Lahore titled as 2008 PTD 1346 Collector of Customs, Central Excise and Sales Tax, Multan v. Saeed Ahmed and 3 others.
12. Having considering all the aspects of case, therefore, I hold that the appeal of appellant has no merits and the same is hereby dismissed with no order as to costs.
13. Announced.
14. All concerned parties may be informed accordingly.
C.M.A./7/Tax(Trib.) Appeal dismissed.