MUHIB UL NABI VS COLLECTOR OF CUSTOMS, SALES TAX AND FEDERAL EXCISE, KARACHI and 4 others, 2007 PTD-KARACHI-HIGH-COURT-SINDH 1502 (2007)

Customs Act (IV of 1969)---

----S. 30 & 31-A(2)---S.R.O. 506(I)/88, dated 26-6-1988---Import of vehicle by foreign diplomat without payment of duty---Purchase of vehicle by "R" after 8 1/2 years of its import and entry of his name in record of Motor Registration Authority in place of diplomat---Seizure and confiscation of vehicle after its sale by "R" in favour of "M" after 9 years of its import---Demand of duties and taxes from "M" as leviable on vehicle on date of its purchase---Validity---No duties were leviable on vehicle after 9 years of its import---Purchaser "M" was not responsible for violation of Cl. (i) of S.R.O. 506(I)/88, and action, if any, could be taken only against foreign diplomat or first purchaser "R"---Authority could not recover duties on such vehicle in accordance with provisions of S.R.O. 506(I)/88---Purchaser "M" was, not liable to pay customs duty or sales tax in respect of such vehicle.

Messrs Eastern Distributors, Karachi v. Commissioner of Income Tax 2002 PTD 2472; The Commissioner of Income Tax v. Dr. B.M. Amkalsaria 1987 PTD 572; Pakistan State Oil Company Ltd. v. Collector of Customs, E&ST 2006 SCMR 425; Sun-Rise Bottling Company (Pvt.), Ltd. v. Federation of Pakistan and 4 others 2006 PTD 535; Rana Tufail Muhammad v. Deputy Collector of Customs, Lahore 1980 PCr.LJ 721; Manhattan International (Pvt.) Ltd., Karachi and others v. Director General Intelligence and Investigation Customs and Excise, Karachi and others 2006 PTD 2609 and Messrs Kohinoor Textile Mills Ltd. Karachi v. Collector of Customs, Sales Tax and Central Excise (Adjudication-ii) Karachi 2006 PTD 133 distinguished.

Muhammad Arif Moton for Appellant.

Raja Muhammad Iqbal for Respondents.

ORDER

MUHAMMAD ATHAR SAEED, J.---This Special Customs Reference Application has been filed under section 196 of the Customs Act, 1969 against the order of the Customs, Excise and Sales Tax Appellate Tribunal dated 13-9-2006 passed in Customs Appeal No.229 of 2006 (K-2) proposing the following questions for the opinion of this Court.

(i)???????? Whether in the facts and circumstances of the case respondent No.1. namely the learned Customs, Excise and Sales Tax Appellate Tribunal Bench-II Karachi has erred in holding that the sale transaction of the disputed vehicle even after an expiry of more than eight years' period from the date of its import attracted payment of customs duty and sales tax, which is in utter disregard and violation of the provisions of condition No.3 of the relevant S.R.O. 506(I)/88 dated 26-6-1988?

(ii)??????? Whether in the facts and circumstances of the case respondent No.1 namely the learned Customs, Excise' and Sales Tax Appellate Tribunal Bench-II, Karachi has erred in reading condition No.1 of the relevant S.R.O. 506(I)/88 dated 26-6-1988 regarding issuance of the No Objection Certificate (NOC) by Ministry of Foreign Affairs Islamabad in isolation from the aforesaid S.R.Os. Condition No.3 regarding total exemption of Customs Duty and Taxes on diplomatic vehicles sold by the diplomatic missions after a period of five years from the date of their import thereby rendering condition No.3 of the aforesaid S.R.O. redundant and superfluous?

(iii)?????? Whether in the facts and circumstances of the case respondent No.1 namely the learned Customs, Excise and Sales Tax Appellate Tribunal Bench-II, Karachi has erred in holding the date of; purchase of the subject vehicle as the crucial date for calculation and payment of Customs Duty and Taxes leviable on the subject vehicle since it is contrary to the fourth proviso to section 30 of the Customs Act, 1969 read with condition No.3 of the relevant S.R.O. 506(I)/88 dated 26-6-1988?

(iv)?????? Whether in the facts and circumstances of the case the violation of condition No.(1) of the relevant S.R.O. 506(I)/88 dated 26-6-1988 regarding non-procurement of a No Objection Certificate (NOC) from Ministry of Foreign Affairs Islamabad by the Attache Embassy of Republic of Afghanistan is tantamount to a procedural irregularity and not a substantive illegality?

(v)??????? Whether the applicant had acquired a good title of the subject vehicle on the strength of Registration Book issued by the Competent Authority namely Motor Registration Wing Excise and Taxation Department Government of Sindh since the applicant purchased the same in good faith and without notice of any discrepancy as per provisions of sections 29 and 30 of the Sale of Goods Act, 1930 read with section 16-A ibid added by the Sale of Goods Act, 1930 in compliance of the Judgment of the Honourable Supreme Court of Pakistan in the case of Wafaq-e-Pakistan v. Awamunas reported as 1908 SCMR. 2041?

(iv)?????? Whether in the facts and circumstances of the case respondent No.4 namely Deputy Collector of Customs, Preventive Headquarter-II Custom House Karachi vide his letter dated 11-11-2006 and respondent No.5 namely Appraising Officer Group-V, Appraisement Collectorate Custom House, Karachi vide his Assessment Sheet dated 28-9-2006 have erred in calculating duties and taxes of the subject vehicle to the tune of Rs.17,92,352 in terms of the impugned judgment of respondent No.1 thereby ignoring provisions of the relevant fourth proviso to section 30 of the Customs Act, 1969 read with Condition No.3 of the relevant S.R.O. 506(1)/88 dated 26-6-1988 in respect of levy of customs duty and taxes and provisions of sub-section (2) of section 31-A of the Customs Act, 1969 in respect of applicable rate of Foreign Exchange?

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2. Brief facts of the case are that on 24-11-2005 the officials of Preventive Collectorate, Custom House, Karachi had seized a Toyota Land Cruiser Jeep bearing Registration No.BC-5015, chassis No.HDJ81-0020745, Model 1992 on the ground that the same had unlawfully been brought in the country. The occupant of the aforesaid vehicle i.e. the present applicant had produced photocopy of bill of entry IGM No.1654 dated 13-9-1994 Index No.8, Free No.436, which showed that the said vehicle was imported and released without payment of duties and taxes in favour of the Consulate General of Afghanistan.

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3. A show-cause notice dated 21-12-2005 was issued to the applicant, who submitted written arguments through his counsel vide the counsel's letter dated 24-1-2006. The explanation of the applicant was that he had purchased the vehicle in question from one Riaz Merchant, who had purchased the same from the Afghanistan Consulate, vide registration book No.NC-407323 and Registration No.BC-5015 issued by Motor Registration Authority Civic Centre, Karachi on 2-9-2003 and no duties and taxes were leviable on the said vehicle in terms of clause 3 of S.R.O. No.506(I)/88 dated 26-6-1988, which provides that no customs duty and sales tax will be levied if the vehicle imported by a diplomat, is sold or disposed off in Pakistan after five years of its importation and the vehicle was transferred in the favour of Riaz Merchant after expiry of 8 1 /2 years from the date of importation.

4. After giving a finding that the vehicle was sold to said Riaz Merchant without acquiring permission from Ministry of Foreign Affairs as required under clause(1) of the above stated S.R.O., the adjudicating authority ordered for confiscation of the said vehicle and levied a personal penalty of Rs.26,000 on the applicant. Being aggrieved by the above order the applicant filed appeal before the Collectorate Appeals, who vide his order in appeal dated 19-5-2006 modified the judgment of the adjudicating authority by directing that the vehicle be released to the applicant on payment of duties and taxes. It will be relevant to reproduce the extract of the paragraph of the order in appeal through which the above directions were issued:-

5.???????? I have examined the available record and given due consideration to the arguments made before me. Clearly, the impugned vehicle was lawfully imported into the country by Ms. Gulfina Undy Haeria, Attache Embasy of the Republic of Afghanistan in 1994 in terms of notification S.R.O. 506(I)/88 dated 26-6-1988 and the same was unlawfully disposed of to one Riaz Merchant in violation of the provisions of the aforesaid notification in so far as necessary NOC was not obtained from the Ministry of Foreign Affairs. Riaz Merchant appears to have managed registration of the vehicle with the vehicle Registration Authority on the strength of some fabricated NOC on 2-9-2003. However, the appellant appears to have purchased the same from Riaz Merchant in good faith on the strength of the registration book and there is no evidence of wrongdoing on record on the part of the appellant. It would, therefore, be harsh to deprive the appellant of the vehicle for which he may have paid a lot of money. Under the circumstances, the ends of justice would be met if the vehicle is released to the appellant on payment of duty/taxes. Therefore, I order to release the same on payment of leviable duty/taxes to the appellant. The penalty of Rs.26,000 imposed on the appellant is also waived. The impugned order is modified to the aforesaid extent only and the appeal is disposed of accordingly.

5. Being aggrieved by the above order the applicant filed an appeal before the Customs, Excise and Sales Tax Appellate Tribunal, who vide the impugned order reproduced the above extract from the order in appeal and without giving a finding of his own held that it would meet the ends of justice if it is ordered that the said vehicle be released to the appellant on payment of leviable duties and taxes from the date of its purchase. Hence this reference application.

6. We have heard Mr. Muhammad Arif Moton learned counsel for the appellant and Mr. Raja Muhammad Iqbal learned counsel for the respondent.

7. The learned counsel for the appellant invited our attention to the provisions of S.R.O. 501(I)/88 dated 26-6-1988 through which the vehicles imported into Pakistan by the representatives of Foreign Government were exempted, to point out that under the provisions of clause 3 of this S.R.O. vehicles could not be sold or disposed of in Pakistan before expiration of five years of its importation, without payment of customs duty and sales tax and then in sub-clauses (i), (ii) and (iii) a gradual declining rates of duties and sales tax has been provided for vehicles sold before five years and after three years from the date of its importation. He submitted that condition No.3 is independent of condition No.1 by which prior permission of Ministry of Foreign Affairs is required for sale or disposal of such vehicles and even if it is found out that condition No.1 has not been fulfilled, no customs duty and sales tax can be levied if it is otherwise proved that the vehicle was sold or disposed of in Pakistan after expiration of 5 years from the date of its importation. He pointed out that it is an admitted fact that the registration of the vehicle in the name of Riaz Merchant the person from whom the applicant purchased the vehicle, was made more than eight years after the date of its importation, therefore, despite the alleged violation of clause-1, the vehicle was not liable to levy of customs duty and sales tax. Without prejudice to his above arguments, he submitted that if clause-1 of the said S.R.O. has been violated then too perhaps action can be taken either against the Afghan Consulate or the first purchaser Riaz Merchant. He went on to argue that after giving a clear cut finding that the appellant had purchased the vehicle in good faith and there is no evidence of wrong doing on record, on behalf of the appellant, the appellant could not be burdened with the payment of leviable duties and taxes.

8. Mr. Raja Muhammad Iqbal the learned counsel for the respondents submitted that the vehicle was a smuggled vehicle and, therefore, was liable either for confiscation or recovery of leviable customs duties and sales tax. After explaining the structure of the Customs Act, the learned counsel took us through the provisions of section 18 of the Customs Act, which according to him, is the charging section of the Customs Act. He explained that under this section all goods are liable to the levy of customs duty on their import into Pakistan. He further referred to the provisions of section 19 of the Customs Act, which provides that Federal Government has general power to exempt any goods imported into or exported from Pakistan from levy of customs duty through a Notification in the official Gazette subject to such conditions and limitations, if any, as the Government thinks fit to impose. The learned counsel explained that the S.R.O., which is the subject-matter of this controversy, was issued by the Government in pursuance of its powers under this section. The learned counsel then argued that the exemption provided by the S.R.O. was subject to the conditions specified in various clauses and if any of these conditions was not fulfilled, the exemption was not available. The next contention of the learned counsel was with reference to section 196 of the Customs Act. The' learned counsel explained that the jurisdiction of the Court under section 196 is a limited one and is restricted to deciding the question of law arising out of the order of the Tribunal. The learned counsel then argued that the questions of law sought to be referred by the applicant are neither questions of law nor do they arise out of the order of the Tribunal and, therefore, this Court has no jurisdiction to adjudicate upon these questions. In support of his above contentions he relied on the following case laws:-

(1)??????? Messrs Eastern Distributors, Karachi v. Commissioner of Income Tax (2002 PTD 2472).

(2)??????? The Commissioner of Income Tax v. Dr. B.M. Amkalsaria (1987 PTD 572).

(3)??????? Collector, Customs, Central Excise and Sales Tax, Quetta v. Messrs Haji Ahmedullah and Company, Quetta and another (sic).

(4)??????? Pakistan State Oil Company Ltd. v. Collector of Customs, E&ST (2006 SCMR 425)

(5)??????? Sun-Rise Bottling Company (Pvt.) Ltd. v. Federation of Pakistan and 4 others (2006 PTD 535).

(6)??????? Rana Tufail Muhammad v. Deputy Collector of Customs, Lahore (1980 PCr.LJ 721)

(7)??????? Manhattan International (Pvt.) Ltd., Karachi and others v. Director General Intelligence and Investigation Customs and Excise), Karachi and others (2006 PTD 2609).

(8)??????? Messrs Kohinoor Textile Mills Ltd: Karachi v. Collector of Customs, Sales Tax and Central Excise (Adjudication-ii) Karachi (2006 PTD 133).

He, therefore, prayed that the reference filed by the applicant being not maintainable in law be dismissed in limine.

9. We have examined the proposed questions and the reference application in the light of the arguments of the learned counsel and have carefully perused the records of the case including the impugned orders and the judgments relied on by the learned counsel.

10. A perusal of the order in original and the orders of the appellate authorities including the impugned order reveals that it is an admitted fact that the vehicle in question was imported in the name of Afghan diplomat and no duty was levied on such import because of the provisions of the S.R.O. referred above. It is also an admitted fact that the vehicle was registered in the name of Riaz Merchant with the motor registration office more than 8 1/2 years after its importation and, therefore, the assumption is that till the time of its registration in the name of Riaz Merchant it must have remained in the name of Afghan diplomat, who had earlier imported it. There is also no dispute to the fact that the applicant had purchased the said vehicle from Riaz Merchant in good faith on the basis of valid registration book registered with the motor vehicle registration authority and it is precisely for these reasons that the first appellate authority had cancelled the directions in the order in original for the confiscation of the said vehicle and directed its release on' payment of leviable duties and taxes whereas the second appellate authority had modified the order further directing that the motor vehicle be released on payment of leviable duties and taxes from the date of purchase. None of these authorities have held that alleged violation of clause-1 of the S.R.O. will render the other clauses inoperative. If the directions of the tribunal are interpreted literally, it will mean that the duties are leviable. on the date of purchase and in accordance with clause (3) of the said S.R.O. since the vehicle has been purchased by the applicant more than 9 years after the date of its importation, no duties are leviable on that date. We also agree with the learned counsel for the appellant that he is not responsible for the violation of clause (i) and action, if any, can only be taken against the Afghan diplomat, who had imported the car, or the first purchaser i.e. Riaz Merchant, but the customs authorities are not entitled to recover customs duties on the said vehicle in accordance with the provisions of the said S.R.O. We have also perused the judgments relied on by the learned counsel for the appellant and we are of the view that all these judgments are irrelevant and have no nexus with the facts of the present case. We are also of the considered opinion that question No.1 proposed by the applicant is a question of law arising out of the order of the tribunal and has to be decided by this Court. On the basis of the above discussion, we would answer this question in affirmative. The effect of the above answer is that the applicant is not liable to pay any customs duty or sales tax in respect of the above vehicle.

11. The above are the reasons for our short order dated 23-2-2007 by which we had allowed the above reference application.

12. A copy of this order under the signature of the Registrar and seal of this Court be emitted to the Customs, Excise and Sales Tax Appellate Tribunal, Karachi Bench-II.

S.A.K./M-50/K?????????????????????????????????????????????????????????????????????????????????? Reference accepted.