KARACHI: The Sindh High Court (SHC) allowed a constitutional petition filed by M/s Quick Contractor & Traders & M/s Rehman Contractor Co against customs officials and dismissed a special customs reference application filed by Collector of Customs against the above-mentioned importers regarding imported vehicles detention case.
On 24 December 2021, SHC single bench headed by Justice Shafi Muhammad Siddiqui released a details judgment dated December 24, 2021.
Court observed in its order that “aforesaid two special customs reference applications along with respective connected petitions involve common questions of law arising out of Tribunal’s judgments and hence have been heard together and are being disposed of by this common judgment along with the petitions which have been filed for implementation of Tribunal’s judgments. For the sake of convenience, the Reference Applications are being treated as leading matters as the answers to the questions arising out of the References will decide the fate of the petition as well
Respondents in both the References i.e. Rehman Construction Company and M/s Quick Contractors & Traders imported old and used truck-mounted cranes.
Apparently, there is no issue of its valuation but the department contested the importability on the touchstone of Para 9 of Import Policy Order 2013.
Preliminary objection of the department is that the appeals were heard by a Single Member of the Tribunal (without Member Technical) and hence under section 194-C of Customs Act, 1969 it is unlawful and, on this count, alone the impugned judgments are liable to be set aside.
Now considering Mr. Abbasi’s arguments, does it suggest that goods could only be imported from countries where these companies are registered, No.
Insofar as M/s Lloyds of London is concerned, all it suggests is that M/s Lloyds is (London) UK based wholly owned by the Lloyd’s Register Foundation, a UK research-based organization, having headquarter in 5 London (UK).
Similarly, SGS is a Hong Kong based surveyor. They operate throughout the world through their agents, wherever the services are required. The truck-mounted crane in one of the References was imported from Dubai and the authorized agent of Lloyds at Dubai issued a certificate to the satisfaction of Customs as far as Reference No.927 of 2017 is concerned. In the connected Reference No.36 of 2019 reshipment certificate of SGS Hong Kong Limited (listed at Serial ‘E’ of Appendix-H to IPO 2013) is available at page 49 of the file and no objection to it appears to have been raised on behalf of the respondents at any stage of the proceedings.
The department has not denied the contents of the pre-shipment inspection report/certificate but in fact it is stated that this has been issued by the agent having no authority of principal and hence not of those listed in Appendix-H of IPO 2013.
We are afraid that the objection of the department and/or Deputy Attorney General insofar as issuance of certificate by agent is concerned, is not tenable under the law as M/s Lloyds of London and SGS Hong Kong, acting for M/s Lloyds, (as it appears), as demonstrated above, are operating throughout the world either themselves or through their agents and/or acting as agent of other listed company, duly recognized and authorized. It is not the case of the applicants/customs authorities/DAG, that they are not acting as a lawful agent but in fact their stand is that an agent under the law is not recognized by IPO 2013.
We are of the view that the pre-shipment inspection report issued through agents is deemed to have been issued by the principal itself and the Import Policy Order 2013 does not restrict the registration of such companies in the countries from where the goods were imported.
Insofar as age of subject vehicle is concerned, we have been informed that in one of the Reference i.e. 927 of 2017 the model year of the vehicle is disclosed as 2001 whereas in the other Reference No.36 of 6 2019 it is disclosed as 1999 whereas they were imported in 2015.
However, learned Deputy Attorney General himself has acknowledged the fact that this objection of their age, being older than ten years was nowhere taken, either in the show-cause or before any of the two forums below, hence this question does not arise from the pleadings and/or proceedings below. We would refrain from answering these arguments as question does not arise out of proceedings
Next argument of learned Deputy Attorney General and the department insofar as two independent units being stacked or assembled or welded together to make it one unit is concerned; this has been clarified by the Ministry of Commerce vide their letter dated 12.03.2012 when earlier Import Policy Order 2009 was in vogue. Para 9 of IPO 2009 is pari materia to Para 9 of Import Policy Order 2013.
With reference to Para 9 of Import Policy Order 2009, the Ministry of Commerce clarified the objections of the customs raised on the same propositions that the crane lorry over the truck was stacked and welded and does not seem to be a factory-fitted and of different makes.
With this observation since Import Policy Order 2013 in its present form is exactly the same (for present purpose) as it stood in 2009, the clarification will be carried forward and the objections of the department insofar as the two dissimilar brands/makes i.e. crane and truck are concerned, would not be tenable. It was never the requirement of Import Policy Order 2013 that a truck-mounted crane should be factory-fitted or that the crane and truck should not be dissimilar as far as their makes are concerned.
The effect of pre-shipment certificate was also highlighted by Hon’ble Supreme Court in the case of Collector of Customs v. M/s Muhammad Tahir Construction taken up in Civil Petition No.435-K of 2019 and also in the case of Collector of Customs v. Khan Gul in Civil Petition No.657 of 2018.
In presence of a pre-shipment certificate, no extraneous material, unless it is established otherwise, can be taken into consideration in forming a view other than described in the pre-shipment certificate.
The only question that arises out for consideration of this Bench is whether the subject vehicle having two components of different makes (i.e. crane and truck) are restricted by Import Policy Order 2013? The question is answered in negative in view of the above facts and circumstances.
The impugned judgments thus do not call for any interference and the Special Customs Reference Applications are dismissed whereas the petitions are allowed as prayed.
A copy of this decision may be sent under the seal of this Court and the signature of the Registrar to learn Customs Appellate Tribunal Benches, Karachi, as required by section 196(5) of Customs Act, 1969”.