AL-KHIDMAT FOUNDATION (PAKISTAN), LAHORE VS ADDITIONAL COLLECTOR OF CUSTOMS-IV, 2015 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 944 (2014)

Customs Act (IV of 1969)---

----Ss.16, 32(1)(2) & 156(1)---Import and Export (Control) Act (XXXIX of 1950), Preamble---Customs General Order No. 12 of 2002---Power to prohibit or restrict importation and exportation of goods---Import of ambulance---Confiscation of ambulance on the ground that stretcher, fire extinguisher and first aid box were lying in loose condition inside the ambulance and were not found fixed and other requisite facilities were not fixed therein---Vehicle in question did not fall within the definition of "ambulance" and by implication had to be treated as 'used vehicle', which was un-importable being hit by Cl.3 of Appendix-E of the Import Policy Order---Validity---All the eight facilities outlined in the Customs General Order No. 12 of 2002 had been found available within the imported vehicle as per the examination report---Examination report did not mention that three out of the total eight items lying in the vehicle were not placed at their appropriate/fixed points---Even if that was the case, the insistence by the Customs that all the items/facilities described had to be fitted amounted to stretching the interpretation of Customs General Order No. 12 of 2002 to unreasonable limits---As a matter of fact except for three, rest of the provisions had been found placed within the vehicle at their appropriate places---Only three items namely stretcher, fire extinguisher and first aid box were lying within the vehicle in what the Order-in-Original describes as lying in 'loose condition'---Presence of three items in 'loose condition' within the ambulance would not disentitle the treatment admissible to an ambulance---Order-in-Original was set aside by the Appellate Tribunal and appeal was allowed.

Nadeem Mirza, Consultant, for Appellant.

Sanaullah Abbasi, Appraising Officer for Respondent.

Date of hearing: 7th May, 2014.

ORDER

KHALID MAHMOOD, MEMBER (TECHNICAL-I).---By this order we dispose of Appeal No.K-25/2013 filed by Messrs Al-Khidmat Foundation (Pakistan) against Order-in-Original No.13 of 2012 passed by the respondent on 9-11-2012.

2.A Toyota Ambulance was donated and shipped to Al-Khidmat Foundation (Pakistan) through B/L No. MOLU12005208500 dated 6-3-2012. Upon arrival a GD dated 5-12-2012 was filed. The ambulance was examined by the shed staff, which gave the following report:--

"DESO: I unit used Toyota Ambulance Van (A.C.) fitted, Chassis No.KR42 - 0057495 Engine No.7K.

CAP: 1781CC Type: GL KR-42V

D/YR MFG: 2001 - or S//Belt

AS Peor: C6 116.2011, fitted as well as different accessories

(1)Folding Seat for 2 to 4 persons

(2)Oxygen cylinder

(3)Red Rotary Lamp and Siren

(4)Hook for intervenes bottle

(5)Stretcher

(6)Fire Extinguisher

(7)Small Cabinet for medicine

(8)Rare penal foot step."

3.At the time of assessment, the Customs issued a show-cause notice dated 7-8-2012 on the plea that since the stretcher, fire extinguisher and first aid box were lying in loose condition inside the ambulance and were not found fixed as such, as the other requisite facilities did the vehicle did not fall within the definition of ambulance and, by implication had to be treated as a used vehicle which is un-importable being hit by clause 3 of Appendix-E of the Import Policy Order. An offence was alleged to have been committed by the importer in terms of sections 16 and 32(1) and (2) of the Customs Act, 1969 read with section 3(1) of the Import and Export (Control) Act, 1950 punishable within the relevant clauses of section 156(1) of the Customs Act, 1969.

4.The Adjudicating Officer in his Order-in-Original No. 13/2012 dated 9-11-2012 held as follows:--

`"Hence, violation of the provisions of Sections 16 and 32(1)(2) of the Customs Act, 1969 read with PCT heading 9913 and serial 116 of CGO 12/2002. Section 3(1) of the Import and Export (Control) Act, 1950 stands established, therefore, the said Toyota Hiace Van bearing registration No. Chassis No. Engine No. Model is outrightly confiscated under Section 156(1)(9)(14) of the Customs Act, 1969. A personal penalty of Rs.100,000 (One Lac Rupees only) is imposed upon the importer Messrs Al-Khidmat Foundation (Pakistan), in terms of clauses (9) and (14) of subsection (1) of section 156 of the Customs Act, 1969."

5.The appellants' consultant, stated that the examination report had also been counter-signed by the Principal Appraiser shed without any adverse observations. Examination Report confirmed and verified the contents and description, as claimed by the importers. The dealing officer in the assessment group with alleged mala fide intention chose to draw a contravention report and propose issuance of show-cause notice on the plea that among the list of the items required to be available in the ambulance under CGO 12/2002, 3 items, namely, stretcher, fire distinguisher and first aid box were lying in loose condition within the ambulance and not fixed. It was not fair on the part of the Customs staff to exclude the vehicle from the definition of ambulance on the basis of such unfair remarks. He pleaded that the vehicle may be allowed release as such and the Order-in-Original be declared null and void.

6.The representative of the respondent defended the action and said that since the vehicle did not fall within the definition of ambulance as provided in the Import Policy read with CGO 12/2002, it had to be treated as a commercial vehicle for the purpose of Import Policy. Treated as commercial vehicle, since it was more than 5 years old, its import was not permissible and as such it was confiscated outright under the relevant provisions of the law.

7.We have heard both the parties and gone though the CGO 12/2002 as well as the import documents and examination report. CGO No.12/2002 (clause 116) reads as follows:--

"116. Specifications and accessories of a standard ambulance.-- Vehicles to be treated as Ambulance must have the following minimum facilities:-

8.All the eight facilities outlined in the aforesaid CGO have been found available within the imported vehicle as per the examination report. We did not find any mention in the examination report that three out of the total eight items lying in the vehicle were not placed at their appropriate/fixed points. Even if that was the case, the insistence by the Customs that all the items/facilities described had to be fitted amounted to stretching the interpretation of CGO to unreasonable limits. As a matter of fact except for three, rest of the provisions have been found placed within the vehicle at their appropriate places. Only three items namely stretcher, fire distinguisher and first aid box were lying within the vehicle in what the Order-in-Original describes as lying in 'loose condition'. We find ourselves completely unconvinced with the plea that the presence of three item in 'loose condition' within the ambulance would disentitle the vehicle the treatment admissible to an ambulance. We can not arrive at a conclusion except that Customs plea in this case was totally preposterous causing considerable hardship to the importers in a bona fide case. We, therefore, set aside the Order-in-Original and allow the appeal.

10.Order passed accordingly.

CMA/89/Tax(Trib.)Appeal accepted.