Appeal No.1292/LB of 2001, decided on 7th January, 2006. Versus Appeal No.1292/LB of 2001, decided on 7th January, 2006.
JUSTICE (R) MIAN MUHAMMAD JAHANGIER, MEMBER (JUDICIAL).--- This appeal is directed against Order-in-Original No.850 of 2001 passed by Collector of Customs Sales Tax and Central Excise (Adjudication) Multan, dated 28-5-2001, whereby the vehicle Hino Truck Registration No.ZBT-693 Model 1985 was ordered to be confiscated under clause 89 subsection (1) of section 156 of Customs Act, 1969.
2. Some relevant facts of the case are that the above mentioned vehicle driven by Hashim Khan was intercepted by staff of Customs Intelligence, Multan on 21-2-2001. On examination of the vehicle by detecting agency it was found that Chassis No.14792 without code was self-punched/tampered on other than its original place. Then it was got examined by the representative of Messrs Hino Pak Motors, Multan and Forensic Science Laboratory, Lahore. The representative of the Hino Pak mainly opined that the chassis number has not been punched by the Hino Pak and that the chassis number is not punched on the proper place of the chassis frame while expert of the Forensic Science Laboratory opined as under:--
"The chemical treatment of the chassis number of Hino Truck Registration No.ZBT-693, in the case cited as subject has revealed as under:
(i) The original chassis number on the frame has been grinded.
(ii) The present chassis number is self-punched. Formation and alignment of the digits is abnormal.
(iii) The original chassis number could not be deciphered due to deep filing. However in view of bad alignment and abnormal formation of the digits the present chassis number is substandard."
3. After completion of the legal formalities the seizing agency referred the matter to the Adjudicating Authority.
4. In reply to the show-cause notice the appellant through their counsel contended that the vehicle in question was intercepted many a time but the allegation of smuggling was not levelled and that in obtaining the reports of the experts they were not associated. It was further contended that the chassis code was not punched generally on the vehicle.
Keeping in view the reports of the experts, the Adjudicating Officer arrived to this conclusion that the reports strengthened the prosecution case therefore, charges levelled by the prosecution have been proved. Being so, the Collector ordered for confiscation of the vehicle in question. Hence this appeal.
5. Being aggrieved from Order-in-Original No.850 of 2001, the appellants have come up in appeal before this Tribunal (Bench) Lahore.
6. Now during the proceedings before this Bench vide Order, dated 28-8-2002, our Predecessors directed Chief Executive Hino Pak Karachi to depute either Director (Technical) Mr. Nite, or General Manager (Assembly Plant) (Mr. Nishat Riaz) to appear before the Tribunal on 1-10-2002 and clarify the position with regard to the affixation of code, the process of punching chassis number and the position of the present vehicle consequently, now before us, the statement of Mr. Mansoor Aalam Production Manager Hino Pak has been recorded on 22-11-2005 and his report has been exhibited as C.W.-1, which is on the record.
7. Mr. Mansoor Aalam mainly stated that he has examined the vehicle bearing No. ZBT-693 having Chassis No.14792 in the premises of Customs House, Lahore and he submitted his report as C.W.-1 signed by him and identified by Khawaja Mehmood Advocate. During cross-examination he admitted that after 1985 and up till now the chassis number is manually punched over the chassis frame and it is not machine punched. The gist of report exhibited C.W.-1 submitted by him is as under:-
"This vehicle was imported as CKD-Kit (Completely knock down Kit) from Hinbo Motors Japan, in 1985 and was subsequently assembled in Pakistan by Republic Motors in 1985. Hino Pak Motors Limited was established in 1986 hence Hino Pak Motors has no documentary record regarding this Truck.
(2) There is no code on the chassis although 14792 number was punched on the Chassis frame.
(3) Since this Truck was assembled and sold by Republic Motors, it cannot be said whether they used to affix the code (Model code) along with the number because Hino Pak Motors has no record of Republic Motors nor the procedure is known to Hinopak Motors."
8. The learned counsel for the appellant mainly argued that the vehicle in question was originally imported by Messrs Republican Motors in 1986 in CKD condition but it was assembled by the said company, having model FF173, Chassis number 14792 and Engine No.169757 and the documents on the record prove that the vehicle in question was lawfully imported but it has been confiscated without any justification, that in case decided by Appellate Tribunal Islamabad, Bench Appeal No.559 of 2000 titled as Muhammad Kashif v. Collector of Customs, Rawalpindi reported in PTCL 2000 CL 782, it is held where the relevant document supporting claim about genuineness of the vehicle and his local assemble and Registration Book issued by MRA are produced, then the vehicle cannot be termed as smuggled one and all proceedings in this connection shall be illegal therefore, in this identical case the vehicle could not be seized and latter on confiscated; that in the year, 1985 chassis number was manually punched by Republican Motors which fact is evident from the certificate, dated 16-5-2001; that the vehicle in question was plying on the road for the last many years having loaded with the goods which were seized by the Customs Authorities but the Customs Authorities never suspected the vehicle in question as non-duty paid and that the appellant No.2 is poor person who purchased the vehicle after spending whole earning of his life and without any justification he has been deprived from this vehicle as such the order-in?-original passed by the Collector, dated 28-5-2001 cannot sustain in the eye of law and is liable to be dismissed.
9. On the other hand the learned D.R. assisted by Rana Irshad Ahmad I.O. after having recorded the statement of Mansoor Aalam Production Manager half-heartedly opposed the arguments advanced by the learned counsel for the appellant.
10. We have heard the arguments advanced by both the sides very sympathetically and it appears to us that the point for determination is as to whether the vehicle in question is smuggled one. In this regard the suspicion of the prosecution is that as to why model code is missing and the Chassis No.14792 is manually punched or why it is abnormal. In order to strengthen this version the prosecution has relied upon the two reports of the experts, one is that Messrs Hino Pak Motors Multan and the other is that of Forensic Science Laboratory, Lahore but these reports are worth no reliance as both have been obtained without association of the appellant.
11. Despite this, we are of the view that the burden of proof is on the defence to show that vehicle in question is not smuggled one. In this connection one thing is admitted that the vehicle in question was assembled by local firm either Hinopak or Republican Motors in 1985 as it effects from the report of Mr. Mansoor Aalam (C.W.-1) therefore, it is obvious that after all, someone purchased this vehicle and he cannot be asked to prove that the vehicle in question is smuggled one and if any such information is to be collected, it can be collected from Hino Pak or Republican Motors. If this vehicle was having chassis number but the Model code was missing even then the concerned firm could be asked to resolve the controversy therefore, in this connection our Predecessor rightly observed that the statement of the representative of Hino pak should be recorded. When this statement was recorded by us, it transpired that after 1985 and up till now the chassis number is manually punched over the chassis frame and it is not machine punched. The tatement of Mansoor Aalam totally negates the prosecution version and in our view it makes no difference if the chassis number on this vehicle is manually punched, or grinded at the place other than the original one. If the prosecution insist on a specific place as original place on the chassis frame, then prosecution must prove as to where is that original place on the chassis frame, otherwise when the chassis number is manually punched, it is not possible that it shall be affixed again and again on a same place and there is possibility of change or difference so-far as the place on the chassis frame is concerned. Meaning thereby the prosecution failed to establish its case and we are of the view that Order-in-Original No. 850 of 2001 cannot sustain in the eye of law.
11-A. Consequently Order-in-Original No. 850 of 2001, dated 28-5-2001 is set aside and we order that the vehicle bearing Registration No.ZBT-693 having Chassis No. 14792 and Engine No. EH-5169757 shall be released and handed over to the appellant immediately and that the bank guarantee also stands released.
12. Appeal is hereby accepted.
C.M.A./67/Tax (Trib.) ????????????????????????????????????????????????????????????? Appeal accepted.