Sunday, 29 June 2014

Burden of Proof in case of non custom paid vehicle

PLJ 2009 Quetta 76 (DB)
Present: Amanullah Khan Yasinzai, C.J. and
Mehta Kailash Nath Kohli, J.
Syed MUHAMMAD QASIM--Applicant
versus
ADDL. COLLECTOR CUSTOM (ADJUDICATION) CUSTOMS HOUSE, COLLECTORATE OF CUSTOMS, AIRPORT ROAD QUETTA and another--Respondents
Custom Reference Application No. 16 of 2006,
decided on 30.3.2009.
Customs Act, 1969 (IV of 1969)--
----S. 187--Burden of proof as to lawful authority--Question, whether custom authorities were under legal obligation to prove that it was a fake punched vehicle--Held: It was the applicant, who had to show that the vehicle was properly and legally imported one--Section 187 of the Customs Act, 1969 clearly contemplates that the person, who is in possession of the vehicle has to show the proper entitlement having lawfully imported the vehicle and having paid custom duty and taxes--Reference answered.      [P. 79] A
1980 SCMR 114, ref.
Mr. Muhammad Qahir Shah, Advocate for Applicant.
Chaudhry Mumtaz Yousaf, Standing Counsel Assisted by Mr. Muhammad Azam, Law Officer, Customs Department for Respondents.
Date of hearing: 19.3.2009.
Order
Mehta Kailash Nath Kholi, J.--This Reference under Section 196 of Customs Act, 1969 (IV of 1969) has been directed against order dated 11th March, 2006 passed by Custom, Excise and Sales Tax Appellate Tribunal, Karachi Bench-I, Karachi (Respondent No. 2) in Custom Appeal No. 1277/2001, whereby; appeal filed against order-in-Original No. 211/2001 dated 09th August, 2001 passed by Additional Collector Customs (Adjudication), Collectorate of Customs, Quetta, has been directed to be dismissed.
Facts of the case, in brief, are that the officials of Directorate of Intelligence and Investigation (Customs, Excise and Sales Tax) Regional Office, Quetta received an authentic information to the effect that a smuggled Mitsubishi Pajero Jeep bearing Registration No. QAE-5213 with tempered chassis number was being driven in Quetta city. Pursuant to said information, the above said vehicle was intercepted by the officials of CIA, city circle Quetta on 04th October, 1999. It was further stated that the officials of CIA after impounding and adopting all legal formalities, handed over the Pajero Mitsubishi Jeep, Model 1989, having Chassis No. CLO49WKJ400685 (tempered) Engine No. 4D56-BM-6316, 2500 CC to the staff of Customs. It was further stated that thorough examination of the vehicle visibly revealed that chassis digits i.e. CLO49WKJ400685 have been punched/tampered. The CIF value of the vehicle as per seizure report is seven lacs rupees. It was case of the applicant that since no proof of legal import and lawful possession of the said vehicle was produced by anyone, as required under Section 187 of the Customs Act, 1969, thus; the staff of Customs Intelligent and Investigation, Quetta under the provisions of Customs Act, 1969, seized the vehicle, and; forwarded the same to the adjudicating authority on 23rd October, 1999 for adjudication. It was further stated that the then adjudicating authority issued show cause notice to the applicant on 15th November, 1999. After conclusion of proceedings, Respondent No. 1 vide order dated 09th August, 2001, passed in Customs order-in-original No. 211/2001, concluded in the following terms:--
"5. .... .... .... It has, thus, been established beyond any doubt that the vehicle involved in this case was brought into the Country illegally and owner of the vehicle manipulated the chassis numbers of the vehicle with the chassis number of another vehicle to hood wink the anti smuggling agencies as is evident from the report of FSL, Crimes Branch, Quetta. In view of the foregoing facts, I have been left with no option except to order the outright confiscation of the vehicle involved in this case under Clauses 8 and 89 of Section 156(1) of the Customs Act, 1969."
Against aforementioned order of confiscation, applicant filed Customs Appeal No. 1277/2001 before Respondent No. 2. Learned Appellate Tribunal (Respondent No. 2) vide order dated 11th March, 2006 up-held the order passed by Respondent No. 1.
Being aggrieved of aforementioned orders passed by the respondents, present Reference has been filed and following prayer has been sought:--
"In light of above mentioned facts, circumstances and grounds, this Hon'ble Court may graciously be pleased:--
(a)   To declare that the order in original No. 211/2001 in seizure case/report No. V-Seiz/INT/136/99 and the order in original dated 11.3.2006 received 12.4.2006 in Appeal No. Q. 1277 of 2001 both impugned herein passed by respondents respectively are against the provisions of law may please be set aside being bad in law.
(b)   To declare that the confiscation of seized vehicle under clause 8 & 89 of the Section 156(1) of Customs Act, 1969 is illegal and unlawful. On declaring so, the orders in original No. 211/2001 dated 9.8.2001 and order in original passed in Custom Appeal No. Q.1277 of 2001 dated 11.3.2006 be set aside and the vehicle Pajero Jeep Reg: No. QAE-5213 be ordered to be returned to the applicant.
(c)   To grant any other relief alongwith costs."
Mr. Muhammad Qahir Shah, Advocate appeared on behalf of applicant, while Chaudhry Mumtaz Yousaf, learned Standing Counsel, assisted by Law Officer Custom, appeared on behalf of respondents.
Learned counsel for applicant contended that it was the duty of the Customs authorities to have proved that it. is fake punched vehicle and the learned Forums below have failed to attend this aspect of the matter and notice was not issued within a period of two months as provided by Section 168 of the Customs Act, 1969, and thus; the proceedings are corum non-judice.
On the other-hand, learned Standing Counsel stated that onus was upon the applicant to show that the vehicle is properly and legally imported having proper and legal number. It was further stated that the forums below have properly appreciated the evidence, which requires no interference by this Court. It was stated that on receipt of vehicle and documents, the notice was issued in time.
We have considered the arguments advanced by learned counsel for the parties and perused the record. From the perusal of record, it transpires that the Courts `below have attended the factum of vehicle being punched number and factual controversy has been set at rest. Section 187 of the Customs Act, 1969 deals with burden of proof, and reproduced herein-below:--
"187 Burden of proof as to lawful authority, etc.--When any person is alleged to have committed an offence under this Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force, the burden of proving that he had such authority, permit, licence or other document shall lie on him."
It was the applicant, who had to show that the vehicle was properly and legally imported one. Section 187 of the Customs Act, 1969 clearly contemplates that the person, who is in possession of the vehicle has to show the proper entitlement having lawfully imported the vehicle and having paid custom duty and taxes. We are supported by the judgment reported in the case of Abdur Rauf Khan v. Collector, Central Excise & Land Customs, Peshawar & 3 others (1980 SCMR 114).
The question of issuance of notice is urged by the counsel for applicant; suffice to observe that the forums below have taken notice of the same and it was pointed out that initially the vehicle was taken into custody by Police and thereafter, it was handed over to Custom authorities, and Custom authorities after receiving the vehicle issued notice in the terms provided under Section 168 of the Customs Act, 1969, within a period of two months. The relevant observations of the order of Additional Collector dated 9th August, 2001 are reproduced herein-below:--
"2. A show cause notice Bearing C.No. V-8(566)Cus/99/28830-33 dated 15-11-1999 was issued to the accused person/persons of the seized vehicle calling upon him/them as to why penal action should not be taken against him/them and the vehicle in question should not be confiscated under the aforesaid provisions of law."
Thus for the foregoing reasons, no question of law is involved warranting interference by this Court. Reference is, therefore, answered in negative.
(M.S.A.)    Reference in negative.
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