PRESENT:
Mr. Justice Aqeel Ahmed Abbasi
Mr. Justice Zulfiqar Ahmad Khan
Constitution Petition No.D-5088 of 2017
Zulfiqar Ali V/s Fed. of Pakistan & others
Date of hearing: 08.10.2020
Date of Judgment 08.10.2020.
Petitioner: Through M/s. Sarfaraz Ali Metlo &
Ameer Bakhsh Metlo, Advocates.
Respondents No.2,3,4 & 5: Through Mr. Muhammad Khalil
Dogar, Advocate,
Fed. of Pakistan: Through Mr. Muhammad
Ameenullah Siddiqui,
Asst. Attorney General.
J U D G M E N T
Aqeel Ahmed Abbasi, J :-- Through instant Petition, the petitioner has expressed his grievance against non-release of ten (10) Hino Prime Movers purchased from M/s. Danish Enterprises, Hong Kong imported in terms of Para-9(ii)(5) of Import Policy Order, 2016. Whereas, according to petitioner, all the prescribed conditions specified therein have been fulfilled by the petitioner and there is no lawful justification to withhold the release of subject Prime Movers.
2. Briefly the facts, as stated in the instant Petition are that petitioner is the sole proprietor of M/s. H. Ali Construction Company, doing construction business throughout Pakistan for last many years. The petitioner, for that purpose, regularly imports different types of construction machinery and is a registered taxpayer holding NTN No.4375297-7, and also registered as a Constructor/Operator with Pakistan Engineering Council under License No.00975. The petitioner purchased ten (10) used Hino Prime Moves from M/s. Danish Enterprises, DD114 LOT 142 (P) 143 (P) Yard Law UK Tsuen, Pat Heung Kam, N.T Hong Kong, and such import is allowed to construction companies under Para 9(ii)(5) of Import Policy Order, 2016 subject to conditions specified therein. M/s. SGS, a pre-shipment inspection company, was engaged to inspect the subject prime movers and state as to whether same fulfil the conditions laid down by the IPO 2016 for import of used prime movers, who inspected the subject prime movers and issued certificate confirming that the prime movers fulfil the conditions as specific in Para-9(ii)(5) of Import Policy Order, 2016. The prime movers were shipped from Hong Kong which arrived at Port of Karachi on 20.04.2017. The petitioner filed the Goods Declarations on 20.04.2017 & 17.05.2017 duly supported with certificate issued by Pre-Shipment Company listed in Appendix-H alongwith invoice & bill of lading etc. Thereafter, the petitioner paid all taxes and duties required for clearance of goods under PCT heading 8701.2040 in view of para 9(ii)(5) (ibid). According to petitioner, the Principal Appraiser examined the goods on 08.05.2017 & 31.05.2017 and confirmed the description of goods given in the Goods Declaration. He further observed that “the group is…… also requested to confirm……manufacturing year through VIN Code etc.”. Although, verification through VIN Decoder is not required by the IPO, however, same was conducted which also confirmed the year of manufacture 2012. The respondent No.5 wrote letters dated 20.04.2017 & 20.05.2017 asking Messrs SGS to verify the geniuses of the PSI certificate. Messrs SGS vide letters dated 27.04.2017 & 28.05.2017 verified the veracity of the PSI certificates. Despite clear examination reports by Principal Appraiser and confirmation by VIN Decoder, the respondent No.5 maliciously, made a fake stereotype report alleging therein that the chasis number of the imported vehicles are suspected to be tempered and issued letter dated 02.05.2017 & 24.05.2017 addressed to A.I.G Police Forensic Division (South) for forensic test of all ten vehicles. The A.I.G after forensic examination of the subject prime movers, by letters dated 05.05.2017 & 30.05.2017 reported that “chemical examination of the vehicles has led that: no other number has been deciphered under the present chasis serial..”.
3. Learned counsel for the petitioner submits that the petitioner has complied with all the codal formalities and fulfilled the prescribed conditions of the Import Policy Order, 2016 by producing the relevant documents including Pre-Shipment Inspection Certificate issued from authorized Pre-Shipment Inspection Company, namely, SGS confirming the year of manufacturing of subject vehicles, however, the respondents malafidely disputed such factual position and obtained a Certificate from Hino Pakistan Motors Limited vide Letter dated 31.07.2017, whereas, no verification has been sought from Hino Japan regarding the year of the manufacture of the subject imported Prime Movers. According to the learned counsel, at the instance of Custom Authorities, FSL Reports were obtained in respect of all imported Prime Movers, which are in favour of the petitioner and do not support the allegations of the Customs Authorities either with regard to tempering of chassis number or mis-declaration regarding age of manufacture. Learned Counsel for the petitioner has drawn the attention of this Court towards order passed on 29.08.2017, whereby, the provisional release of the subject Prime Movers was allowed subject to deposit of the differential amount of duty and taxes as determined by the Custom Authorities, whereas, the amount of fine and penalty, if any, equal to the value of the subject vehicles, has also been secured before the Nazir of this Court in the shape of tangible security. Per learned counsel, the respondents have no case or reasonable justification to dispute the lawful import by the petitioner in terms of Import Policy Order, 2016, therefore, prayed that instant Petition may be allowed and the amount secured by the petitioner before Nazir of this Court towards fine and penalty may be directed to be released to the petitioner. It has further contended by the learned counsel for petitioner that the controversy agitated through instant petition has already been dealt with by this Court through various judgments as well as by the judgments of the Hon’ble Supreme Court, reference of which has been made in Order dated 17.09.2020 i.e. The Collector of Customs through Additional Collector of Customs (Law), Karachi v. Messrs. Muhammad Tahir Construction Company, Loralai [2019 PTD 1599] and Messrs Khan Gul Government Contractor v. Federation of Pakistan through Secretary/Chairman, Federal Board of Revenue, Islamabad and another [2018 PTD 415]. The aforesaid judgments have duly been upheld by the Hon’ble Supreme Court of Pakistan in the case of The Collector of Customs, Model Customs Collectorate, NLC Dry Port, Quetta v. M/s. Gul Khan Govt. Contractor and another vide Judgment dated 26.04.2018 passed in Civil Petition No. 657 of 2018.
4. While confronted with hereinabove submissions of the learned counsel for petitioner, learned counsel for the respondents could not dispute the legal position nor could submit any reasonable response as to how the facts of instant case and the legal issues decided by this Court in the aforesaid judgments are distinguishable from the facts and legal position as attracted in the instant case. Learned counsel for the respondent was specifically confronted to assist the Court as to how the local manufacturer of Hino Pak Trucks has any relevance for the purposes of import of Hino Prime Motors (Japan) in terms of Para-9(ii)(5) of Import Policy Order, 2016, however, he could not submit any reasonable explanation in this regard, and referred to the correspondence made by the Custom Authorities with local manufacturer in Pakistan i.e. M/s. Hino Pakistan. We have not been able to reconcile with the idea of obtaining verification of the year of manufacturing from the local company, instead of seeking verification from the manufacturer at Japan. This aspect of the matter has been duly examined in detail in the case of The Collector of Customs through Additional Collector of Customs (Law), Karachi v. Messrs Muhammad Tahir Construction Company, Loralai [2019 PTD 1599] in the following terms: -
“6. From perusal of the provision of Import Policy Order, 2016 as applicable to the imports made by the respondent, and the judgment passed by the Customs Appellate Tribunal in the instant case, it appears that, except inadvertent reference to the Import Policy Order, 2013 by the Customs Appellate Tribunal in the instant case, there has been no dispute regarding facts of the instant case, particularly, production of required documents by the respondent at the time of import of vehicles, including pre-shipment certificate by recognized company as per Appendix-H showing the year of manufacture as 2012, and also Euro-II Compliant, notolder than five years, which prima facie establishes that vehicles were imported in conformity with the requirements of paragraph 9(ii)(5) of Import Policy Order, 2016. It has been further observed that in addition to aforesaid documents produced by the respondent at the time of import, the Customs Authorities have also conducted two physical inspections in order to further verify the year of manufacture, whereafter, it was confirmed that year of manufacture of the imported Hino Trucks is 2012 (not older than five years). In view of above conclusive finding with regard to year of manufacture as recorded by the Appellate Tribunal in the instant case, there is no reason to interfere with the order of the Tribunal in reference jurisdiction. Similar controversy has also been decided by a Division Bench of Balochistan High Court in Customs Reference Application No.08 of 2019 vide order dated 26.02.2019, copy of which was placed on record by learned counsel for the respondent, wherein, it has been held as under:-
"4. In view of the above para, the machinery mentioned therein shall necessarily be subject to Pre-Shipment Inspection from a recognized Pre-Shipment Inspection Company, to judge the condition of the vehicle, to confirm its manufacturer and the year of manufacturing. The petitioner relies upon the certificate/ report received from the Hino Pak Company, showing that the vehicles are older than five years. The Policy assigned the jurisdiction only to the recognized pre-shipment companies, listed in appendix-H, to inspect the shipment and to submit a report with regard to the referred three condition, mentioned in sub-para (5) of para-9 of the policy. In case of objection upon the year of manufacturing the petitioner should have asked the said company to re-verify/ re-confirm the year of manufacturing of the vehicles, alternately, the petitioner had the option to have sought verification from other recognized companies listed in the Appendix. The petitioner instead of doing so, asked the Hino Pak company for verification of the manufacturing years of the vehicles, which is not a recognized company, hence had no authority to submit a report as per the policy. Besides, the authenticity of the document received from the Hino Pak, a private company, is doubtful, therefore, cannot be relied upon.
5. Without prejudice to the above, even otherwise, the determination of the year of manufacturing can easily be ascertained from the import certificate and documents of the vehicle, but there is nothing on the record to believe that the custom authorities while issuing the show-cause notices and passing the order-in-original, have gone through these documents. Moreover, the petitioner did not ask the respondent to provide the documents of the vehicle so that the year of manufacturing could be ascertained. This important aspect of the case has not been dilated upon by the appellate authority as well. The determination of the age of the vehicle is a factual controversy, whereas the appellate authority in para 6 of its order that "as the issue involved a factual controversy of actual year of manufacture of the impugned vehicle". Thus, this factual controversy has finally been decided by the competent forum i.e. the tribunal. We while exercising powers under Section 196 of the Customs Act, 1965 cannot go into the factual controversy. The tribunal after proper appraisal of the evidence, has exercised its jurisdiction justly and fairly, which needs no interference. Though, the learned AAG did his best to built a case, but the record does not support his contentions.
Thus, in view of above, these references are dismissed in limine."
7. Learned counsel for the applicant has not been able to point out any factual error or illegality in the impugned order passed by the Customs Appellate Tribunal in the instant case, nor could assist this Court as to how, on the basis of a purported certificate obtained from local manufacturer of Hino Pak Truck, the age of imported Hino Truck can be ascertained. Moreover, record shows that respondent has discharged the initial burden to prove that the subject vehicles were imported in conformity with paragraph 9(ii)(5) of the Import Policy Order, 2016, whereas, applicant has failed to produce any evidence or material which could otherwise support the allegations of violation of pars 9(ii)(5) of the Import Policy Order, 2016. The ratio of the case relied upon by learned counsel for the respondent as referred to hereinabove is also squarely attracted to the facts of the instant case.
8. Accordingly, we do not find any substance in the instant Reference Application, whereas, the finding as recorded by the Appellate Tribunal in the instant case is predominately based on the findings of facts which does not suffer from any factual error or legal infirmity, hence does not require any interference by this Court. Reference in this regard can be made to the case of Irum Ghee Mills v. Commissioner Income Tax 2000 SCMR 1871. Accordingly, the proposed questions are answered in negative against the applicant and in favour of the respondent.”
5. In view of hereinabove facts and circumstances of this case, we are of the considered opinion that facts and ratio of the above cited judgments are fully applicable to the instant petition. Accordingly, instant petition is allowed alongwith listed application. Nazir is directed to return the security amount, equal to the value of the vehicles, deposited in the shape of tangible security to the petitioner pursuant to Court’s order, however, after proper identification and verification.
JUDGE
JUDGE
FarhanPS