KARACHI: A two-member bench of the Sindh High Court (SHC) comprising Justice Irfan Saadat Khan and Justice Zulfiqar Ahmad Khan announced verdict in favour of customs department and against the imported in Constitutional petition and special customs reference application filed by the Collector of Customs against M/s Middle East Construction Company
On 18 May 2022, court releases details verdict in which court observed that “through this common judgment we intend to dispose of above identified two Special Customs Reference Applications moved under section 196 of Customs Act, 1969 and the connected constitutional petition as these involve common questions of law, and for the sake of convenience the Reference Applications are being treated as leading matter as the answer to the questions proposed in the References will decide the fate of the constitutional -2- C.P. No.D-1390 of 2020 a/w SCRA No.303 & 304 of 2020 petition as well, which was filed for the compliance of Tribunal’s judgment.
Compendiously the facts of the case are that the petitioner/ importer imported a consignment declared to consist of four units old and used Hino Prime Mover Trucks and filed Goods Declaration under PCT heading 8701.2040 having Chassis Numbers JHDGH1JRPXXX11574, JHDGH1JRPXXX10245, JHDGH1JRPXXX10028 and JHDGH1JRPXXX11444.
When the declaration of the petitioner/importer was checked and examined and it was found that the consignment actually consisted of old and used Hino Trucks of PCT heading 8704.2219 which were allegedly imported under the garb of Prime Mover carrying PCT heading 8701.2040. At the request of the petitioner/importer, the subject vehicles were re-examined as the petitioner/importer pleaded to have only imported Prime Mover Trucks instead of Trucks whereupon the concerned examiner reported that the subject consignments were in fact Trucks instead of Prime Mover Trucks.
Considering these anomalies, the petitioner/importer was confronted with a show cause notice on the -3- C.P. No.D-1390 of 2020 a/w SCRA No.303 & 304 of 2020 ground that the petitioner/importer imported old and used Trucks having PCT sub-heading 8704.2219 which were not importable vide S.No. 10 of Appendix C read with Para-9(II)5(A) of Import Policy Order, 2016.
The Adjudicating Authority having heard the petitioner/importer, passed an Order-in-Original directing confiscation of the subject vehicles, alongside imposing a penalty of 0.5 million per truck on the importer and the clearing agent alike.
Petitioner/importer impugned the said Order-in-Original before Custom Appellate Tribunal by filing Custom Appeals Nos.K-1148/2019 and K-1149/2019 and that the Appellate Tribunal vide order dated 17.01.2020 set aside the Order-in-Original which is impugned by the department in the SCRAs at hand.
The case set forth for the department/applicant by Mr. Khalid Rajpur, Advocate was that since the claimed PCT heading in respect of the imported goods was adjudged to be at variance to the ascertained PCT heading, hence, the petitioner‘s/importer‘s claim automatically constituted a mis-declaration begging adjudication as the subject vehicles were only used Trucks as per assessment report, and not Prime Movers as claimed by the importer, and since such imports were banned under the Import Policy Order 2016, confiscation order along with penalty was passed, which has been turned down by the Tribunal based on surmises and conjectures.
To the contrary, the petitioner‘s/importer‘s counsel articulated that the claimed PCT heading was cited honestly, based inter alia on past departmental treatment in such regard, and that there was no element of culpable mens rea in the facts under consideration and placed reliance on the PSI Certificates Reports -4- C.P. No.D-1390 of 2020 a/w SCRA No.303 & 304 of 2020 which stated that the vehicles were ―Prime Mover Trucks‖.
She further stated that a Divisional Bench of this Court in another similar matter has passed short orders for release of identical goods and requested for similar treatment. Mr. Kafeel Ahmed Abbasi, DAG supported the case of the Department and drew our attention to the applicable provisions of the law and the IPOs.
Resultantly Question No. 1 as to Whether old and used prime mover is importable without fulfillment of conditions laid down under (b) of Para-9(II)(5) of Import Policy Order, 2016 is answered in Negative (i.e. against the importer and in favor of the department) and Question No. 2 as to Whether the ambiguous description of vehicle mentioned in the Pre-Shipment Inspection Certificate is not an attempt to hoodwink the Customs authorities? is answered in Affirmative (i.e. against the importer and in favor of the department). The Constitutional Petition seeking implementation of the Tribunal Judgment as a result thereof becomes meritless, hence dismissed. -10- C.P. No.D-1390 of 2020 a/w SCRA No.303 & 304 of 2020 14.
A copy of this judgment under seal of the Court be sent to the Customs Appellate Tribunal as per section 196(5) of the Customs Act, 1969”.