ABDUL GHAFFAR BHUNDI VS COLLECTOR OF CUSTOMS (APPRAISEMENT), KARACHI, 2006 PTD-KARACHI-HIGH-COURT-SINDH 1566 (2006)

(a) Customs Act (IV of 1969)---

---Preamble & First Sched.---Pakistan Customs Tariff Schedule would be treated as part of Customs Act, 1969.

(b) Customs Act (IV of 1969)---

---5.223 & First Sched., PCT Headings 8704.1010---Customs General Order No.18 of 2005, dated 22-10-2005---Used dumper trucks for off highway use, import of---Importer seeking release of trucks on payment of duty @ 5% in terms of Item No.8704.1010 of PCT Schedule---Refusal of authority to release trucks without clearance from Central Classification Committee of C.B.R.---Validity---Pakistan Customs Tariff Schedule would be treated as part of Customs Act, 1969---Rights conferred by statute could not be curtailed by an executive order, unless statute itself permitted so---Conditions contained in Customs General Order No.18/2005 stipulating such import by a construction company registered with Pakistan Engineering Council for ongoing project etc., were ultra vires the Customs Act, 1969 and thus, would not have effect on trucks imported by a person answering requirements of Item No.8704.1010---Benefit of 5% rate of duty would be available to dumper trucks possessing attributes mentioned in such PCT Schedule---Classification of goods for purpose of duty was a matter casting financial burden on importer, which could not be controlled by C.B.R.---by issuing directions could not interfere with quasi-judicial functions of officers of Customs---No role was attributed to Central Classification Committee to examine physically each and every imported consignment---Appraisers of Department were bound to physically examine goods and charge duty @ 5%, if requirements of Item No. 8704.1010 enumerated in CGO-18/05 were fulfilled.

(c) Interpretation of statutes---

----Executive order---Rights conferred by statute could not be curtailed by an executive order unless statute itself permitted so. [p. 1570] C

Khawaja Shamsul Islam for Petitioners.

Raja Muhammad Iqbal for Respondent No.1

Javed Farooqi for Respondent No.3.

Date of hearing: 13th April, 2006.

JUDGMENT

SABIHUDDIN AHMED, C.J.---The controversy in these petitions is confined to some very clear and narrow parameters. The petitioners, who had allegedly imported some secondhand dumper trucks for off highway use and had claimed to be entitled to the concessionary rate of custom duty at the rate of 5% in terms of Item No.8704.1010 of the Pakistan Customs Tariff Schedule, are aggrieved by the failure of the respondents to release those vehicles resulting in heavy demurrage required to be paid to the respondent No.3. On the other hand the case of the Respondents Nos.l and 2 appears to be that the question whether the imported goods fall within the aforesaid provisions of the P.C.T. Schedule is one pertaining to classification of goods and therefore, the said goods could not be released without clearance from the Central Classification Committee of the Central Board of Revenue, which has not yet decided the issue of classification of the imported goods. Moreover, it is contended that not all goods falling under Item No.8704.1010 but only those which conform to the requirements of Customs General Order 18 of 2005 dated 22nd October 2005 classify for concessionary rate of duty of 5% under Item No.8704.1010 and otherwise duty at the rate of 60% ad volerem is required to be paid under Item No.8704.1090. In the first instance it may be appropriate to reproduce Item No.8704.1010 from the P.C.T. Schedule which reads as follows:---

2. On 22nd October, 2005, the Central Board of Revenue issued C.G.O.-18/2005, the contents whereof may be reproduced as follows:---

GOVERNMENT OF PAKISTAN

REVENUE DIVISION

(CENTRAL BOARD OF REVENUE)

Mach/2005 ???????????????????????????????????????????????????????????????? Islamabad the 22nd October, 2005.

CUSTOMS GENERAL ORDER NO. 18/05

Subject: IMPORT OF DUMPERS DESIGNED FOR OFF HIGHWAY USE IN CBU CONDITION.

In order to streamline the procedure of clearance of dumper trucks for off highway use at the import stage and to check the abuse of facility granted to the construction industry in the form of importability in second hand condition and lower ----of duty and taxes, the Board is pleased to prescribe the following procedure:---

1. Determining of actual requirement.---Para. 6 of Import Policy Order allows import of second hand dump trucks above 5 ton capacity to the construction sector actually required for its projects in Pakistan. The Collectorates before allowing clearance under this provisions of the IP shall determine the actual requirement of construction company for its on going projects on the following parameters:---

(a) The Company is registered as a construction company with Pakistan Engineering Council (PEC).

(b) The import is actually made by the construction company itself.

(c) Proof of ongoing construction projects of the importing . company.

(d) Size and nature of the ongoing projects and details of construction machinery already owned by the company.

(e) Details of dump trucks already imported or acquired for the ongoing projects in question.

(f) Any other information, which the Collector may deem appropriate to determine the actual requirement.

2. Examination:

Off highway dump trucks falling under HS 8704.1010 are required to have the following specifications:

(i) Designed for off highway use;

(ii) Limited speed in the speed-o-meter;

(iii) Lack of axle suspension;

(iv) Sturdily built with a tipping or bottom opening body;

(v) Rigid or articulated chassis;

(vi) Off road wheels; and

(vii) Special earthmoving tyres.

In order to ensure that the imported dump trucks actually conform to the above specifications their examination shall be conducted by a committee comprising of the following:

(i) Deputy/Assistant Collector Examination.

(ii) P.A./Supdt. Examination.

(iii) M.S.A.

(iv) A representative of the local manufacturers of dump trucks. In cities where there are no local manufacturers of dump trucks any representative of automobile sector may be associated.

(v) Any other person which the Collector may deem appropriate to .associate keeping in view his relevant and expertise regarding the subject.

3. The Collectors shall closely monitor the working of the examination committees in order to ensure correct report.

(Sd.)

(FAZAL YAZDANI KHAN)

SECRETARY (MACHINERY)

3. It may be pertinent to mention here that the P.C.T. Schedule is required to be treated as part of the Customs Act being the First Schedule thereto. The relevant item in question requires a lower rate of duty to the payable upon goods answering a particular description without any reference whatsoever as to who is the importer should be and for what whose use the goods are imported. The rights conferred by statute cannot be curtailed by an executive order unless the statute itself permits so. We are therefore, of the opinion that the conditions contained in para. 1 of the C.G.O. stipulating that the import should be made by a construction company registered with the Pakistan Engineering Council or for on going project etc. are ultravires the Customs Act and cannot be said to have any legal effect. On the contrary goods imported by any person answering the requirements of Item No. 8704.1010 would be liable to the rate of 5% duty. With respect to the conditions specified in para.2 however, we are of the view that it is evident from the language of the relevant item in the PCT Schedule that all the conditions contained in this paragraph are enumerated in the relevant provision of the statute. Therefore, the benefit of 5% rate of duty would only be available to dumper possessing the following attributes.

4. With respect to the plea that the goods could not be released without clearance from the classification Committee of the C.B.R. We regret to say that we are not in lest impressed by this contention. Indeed section 223 requires officers of Customs to follow orders and directions of the C.B.R. but its proviso expressly requires that no directions would be given so as to interfere with the quasi-judicial functions of such officers. Indeed classification of goods for the purposes of duty is a matter casting financial burdens on the importer, which cannot be controlled by directions from the C.B.R. In any event even if a classification committee has been formed for the whole country it could be useful for determining as to how some particular types of goods not mentioned in the P.C.T. Schedule could be classified for the purposes of levy of customs duty on a uniform basis throughout country. Nevertheless, when the rate of duty depends upon a vehicle examination of the goods for considering whether the requirements of a particular item exists as has been shown in para.2 of C.G.O. 18/05 no role for the Central Classification Committee which does not physically examine each and every imported consignment can be envisaged. For the foregoing reasons, we are clearly of the opinion that it is the duty of the appraisers in the respondent No. 1 to physically examine the goods and charge duty at the rate of 5% in case the requirements of Item No.8704.1010 enumerated in para. 2 of CGO-18/05 are fulfilled. These are our reasons for the short order announced in Court on 13-4-2006.

S.A.K./A-57/K??????????????????????????????????????????????????????????????????????????????????? Order accordingly.