COLLECTOR OF CUSTOMS, through Additional Collector of Customs VS EASTERN CONSTRUCTION COMPANY, 2015 PTD-KARACHI-HIGH-COURT-SINDH 963 (2014)

Customs Act (IV of 1969)---

----Ss. 194-A, 194-C, 196 & 181---Import Policy Order, 2013, Paras.9(ii)(5) & 10(vii), PCT Heading 8705-4000---Reference to High Court---Department being aggrieved and dissatisfied by the order passed by the Customs Appellate Tribunal, had filed reference application before High Court---Applicant/department, pressed two questions; (a) whether Bench of the Appellate Tribunal, without Member (Technical) possessed jurisdiction to decide/dispose of an appeal; (b) whether, Chairman of the Appellate Tribunal, erred in law to hold that the impugned vehicle, was classifiable under PCT Heading 8705-4000, meant for "specialized vehicles"---Contention of department was that Member (Judicial) Customs Appellate Tribunal, had erred in law and facts, while passing the impugned order in the absence of Member (Technical) Customs Appellate Tribunal, which authority was not vested in the Single Member (Judicial) in terms of S.194-C of the Customs Act, 1969; that Customs Appellate Tribunal had erred while holding that impugned vehicles were classifiable under PCT Heading 8705-4000 meant for "Specialized Vehicles" and that it was a case of mis-declaration by the importer, whereby importer while ignoring and by violating the terms of Import Policy Order, 2013 attempted to import old and used truck classifiable under PCT Heading 8704-2219, in the garb of old and used concrete transit mixer truck in connivance with pre-shipment company---Validity---No findings, had been recorded by Customs Appellate Tribunal on the question of constitution of Bench as neither such ground was raised by the applicant/department in the appeal, nor it appeared to have been argued on behalf of the department before the Customs Appellate Tribunal---Subsection (4) of S.194-C of Customs Act, 1969, provided that Chairman or any other Member of Customs Appellate Tribunal, authorized in that behalf by the Chairman, could while sitting singly, dispose of any case which could be allotted to the Bench of which he was a member; where the value of goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under S.181 of Customs Act, 1969; and in any disputed case the difference in duty and taxes involved or duty or tax involved, or the amount of fine or penalty involved, did not exceed five million rupees---In the present case, the appeal had been decided by the Chairman himself while sitting singly; whereas the value of goods confiscated, without option having been given to the owner of the goods to pay a fine in lieu of confiscation; and the difference in duty or tax involved in the case, did not exceed rupees five million---Chairman, Customs Appellate Tribunal, while sitting singly, had the authority to dispose of any case himself, if conditions as provided under clauses (a) & (c) of subsection (4) of S.194-C of the Customs Act, 1969, were applicable; whereas such conditions were attracted in the present case---Impugned order, in circumstances, had not been passed without jurisdiction by the Chairman (Judicial Member) Customs Appellate Tribunal, while sitting singly---Question as proposed by the department in that regard was answered by the High Court in the affirmative against the department and in favour of the importer---No error or perversity in the findings of fact as recorded by the Customs Appellate Tribunal was noticed in the impugned order which otherwise depicted correct legal position---Import of the vehicle in question had been made by the importer after complying with legal requirements---Status and physical specification of vehicles in question, had duly been confirmed by the Ministry of Commerce, which had to regulate the import and export of the goods; and applicant department, could not draw any adverse inference in that regard---Customs Authorities without any factual, or legal basis, had disallowed the release of the vehicles in question, merely on the presumption that, importer would not use the imported concrete Transit Mixer for mixing and transportation of liquid cement; and could subsequently use such vehicles as normal loading trucks for transportation of other goods by removing the welded, adopted and fabricated Concrete Transit mixer---Customs Authorities, under the law were required to conduct examination, process the Goods Declaration, and to make assessment of the consignment imported "as presented" on the basis of import presentation of Goods Declaration examination and assessment; and not on assumption or suspicion that subsequent to clearance of such consignment, the goods could be used for some other purpose by altering and changing its structure, particularly when so such eventuality had surfaced---Such authority, if allowed to be exercised by the Customs Authorities, would result in multiplicity of unnecessary litigation; and was likely to defeat the purpose, and implementation of import Policy---Nothing had been brought on record, either to show that any of the terms and conditions of Para 9(ii)(5) of the Import Policy Order, 2013 had been violated by the importer, nor it was the case of the department that importer did not require such vehicles for the purpose as defined in the said Para of the Import Policy Order, 2013---Question on the subject was answered by the High Court in the negative, against the department and in favour of importer---Decision of the Customs Appellate Tribunal, in that regard was pre-dominantly based on fact, which depicted correct legal position---No exception could be drawn by High Court, while exercising Reference jurisdiction under S.196 of the Customs Act, 1969.

Collector of Customs (Appraisement) v. Messrs Shabaz International 2007 PTD 202; Collector of Customs through Additional Collector of Customs, Karachi v. Messrs Qasim International Container Terminal (Pak) Ltd. 2013 PTD 392; Messrs Real Trading Co. through Wali Muhammad, Karachi 2010 PTD 826; Abu Bakar Siddique v. Collector of Customs and others 2002 CLC 1066; Messrs Gold Trade Impex through partner and another v. Appellate Tribunal of Customs, Excise and Sales Tax through Collector of Customs, and 2 others 2012 PTD 377; Collector of Customs, Karachi v. Messrs Ali Enterprises, Karachi 2006 PTD 651; Collector of Customs, Model Customs Collectorate of PACCS, Karachi v. Muzammil Ahmed 2009 PTD 266; Collectorate of Customs v. Messrs Noman Chugtai 2007 PTD 153; Sherzada v. Collector Customs, Peshawar 2011 PTD 301 and Collector of Customs, Port Muhammad Bin Qasim, Karachi 2008 SCMR 1538 ref.

Kashif Nazeer for Applicant.

Malik Nadeem Iqbal and Malik Altaf Javed for Respondents.

Date of hearing: 27th August, 2014.

JUDGMENT

AQEEL AHMED ABBASI, J.---Being aggrieved and dis-satisfied by the order dated 10-10-2013 passed by the Customs Appellate Tribunal, Bench-III, Karachi, in Customs Appeal No.K-980/2013/1473, whereby, the appeal filed by the respondent against Order-in-Appeals Nos.7678 to 7690/2013 dated 27-10-2013, has been allowed and the orders passed by the two forums below have been set-aside, the applicant department has filed instant Reference Applications under section 196 of the Customs Act, 1969, and proposed ten questions, to be answered by this Court, which according to applicant were questions of law arising from the impugned order passed by the Customs Appellate Tribunal. However, when the matter was taken up for hearing at Katcha Peshi stage on 17-3-2014 and the Notices were issued to the respondent, the learned counsel for the applicant has pressed the following two questions, which according to learned counsel would resolve the legal controversy involved in these reference applications:--

(a)Whether Bench of the Appellate Tribunal without Member (Technical) possesses jurisdiction to decide/dispose of an appeal?

(b)Whether in the light of facts and circumstances of the case, the learned Chairman of the Appellate Tribunal erred in law to hold that the impugned vehicles are classifiable under PCT Heading 8705.4000 meant for "specialized vehicles"?

2.By consent of learned counsel for the parties, the above reference applications, which involve the identical questions and controversy, are being disposed of at Katcha Peshi stage through common judgment. Learned counsel for the applicant has argued that the Member (Judicial) Customs Appellate Tribunal, has erred in law and facts, while passing the impugned order, in the absence of Member (Technical) Customs Appellate Tribunal, which authority, per learned counsel for the applicant, is not vested in the learned Single Member (Judicial) in terms of section 194-C of the Customs Act, 1969. Learned counsel for the applicant has readout the provision of subsection (2) of section 194-C of the Customs Act, 1969, and submits that in terms of the aforesaid subsection a Bench shall consist of one Judicial and one Technical, Member, whereas, in terms of subsection (3), it has been provided that in cases where duty, taxes, penalty or fine exceeding five million rupees, the case is to be heard by Special Bench constituted by the Chairman for hearing such appeals, which shall consist of not less than two members, and which shall include at least one Judicial Member and one Technical Member. Per learned counsel, every case is to be placed before a D.B. consisting of at least two Members and thereafter the Chairman may send a case to any learned Single Member of such bench for decision in accordance with law.

3.As regards the question 'b' as referred to hereinabove, relating to the imports of the goods, it has been contended by the learned counsel for applicant that the learned Customs Appellate Tribunal has also erred while holding that the impugned vehicles are classifiable under PCT Heading 8705.4000 meant for "Specialized Vehicles". It has been further contended by the learned counsel that this is a case of mis-declaration by the respondent, whereby, the respondents, while ignoring and by violating the terms of Import Policy Order, 2013, attempted to import old and used trucks classifiable under PCT Heading 8704.2219, in the garb of old and used concrete transit mixer trucks in connivance with pre-shipment company. Per learned counsel, in terms of Appendix 'C' of Import Policy Order, 2013, such old trucks are not freely importable. It has been further contended by learned counsel for the applicant that in the garb of concrete transit mixer trucks respondents have in fact attempted to get the release of the old and used trucks by temporarily installing mixer on such trucks, which will not be used for the cement industry and may be used for normal transportation of goods by removing such mixer. Per learned counsel, since the respondents have deliberately mis-declared the H.S. Code, therefore, the impugned order passed by the learned Customs Appellate Tribunal may be set aside.

4.Conversely, learned counsel for the respondent has vehemently opposed the contention of the learned counsel for the applicant for being factually incorrect and legally not sustainable. It has been contended by the learned counsel for the respondent that the question 'a' proposed by the applicant as referred to hereinabove does not arise from the impugned order passed by the learned Customs appellate as such the controversy was never raised before the learned Customs Appellate Tribunal nor there has been any finding recorded in the impugned order, hence the question proposed with regard to jurisdiction of the worthy Chairman, (Judicial Member) Customs Appellate Tribunal in the instant cases does not arise from the impugned order passed by the Appellate Tribunal. Learned counsel further submits that even without prejudice to above contention, the worthy Chairman (Member Judicial), who has passed the impugned order(s), is competent to decide the case while sitting singly in terms of subsection (4)(a) of section 194 clause 'C' in cases where goods have been confiscated out rightly without option having been given to the owner of the goods to pay a fine in lieu of confiscation under Section 181 of the Customs Act, 1969. Learned counsel for the respondent has also referred to subsection (c) of subsection (4) of section 194-C, which, according to learned counsel for the respondent, authorizes the Chairman or any other Member of the Appellate Tribunal to decide the case while sitting singly if the difference in duty and taxes involved or the amount of fine and penalty does not exceed five million rupees, whereas, in the instant case, per learned counsel, both the above provisions are attracted. It has been contended by the learned counsel that in view of the facts and circumstances of this case (s) and the provisions of subsections (4)(c) of section 194-C of the Customs Act, 1969, the question 'a' proposed by the applicant in this regard is misconceived and the same may be answered in affirmative, against the applicant and in favour of the respondent.

5.As regards the second question 'b' proposed by the applicant as referred to hereinabove in the instant case(s), it has been contended by the learned counsel for the respondent that the proposed question is not a question of law as the decision of the learned Appellate Tribunal in this regard is based on pure finding of fact. Moreover, the dispute relating to classification is a question of fact and not a question of law, which could be referred for opinion to this Court under its reference jurisdiction under section 196 of the Customs Act, 1969. Per learned counsel, the respondent has imported the old and used Hino Concrete Transit Mixers from Japan and sought clearance under PCT Heading 8705.4000 in terms of para 9 (ii) (5) of the Import Policy Order, 2013, and did not commit any mis-declaration as alleged by the applicant, whereas, the adjudicating authority seriously erred in fact and law by holding that the applicant has attempted to seek clearance of the old truck by temporarily fixing the concrete transit mixer thereon. Per learned counsel, such finding was perverse and not supported by any material and moreover was based on conjectures and presumption that the respondent will not use these concrete transit mixers trucks in the factory for mixing and transportation of liquid cement and may use the same as trucks for transporting goods by removing the concrete transit mixers thereon. It has been further contended by the learned counsel for the respondent that on scrutiny of the documents filed by the importer in these cases, including pre-shipment inspection certificate issued by Messrs SGS Dubai, UAE, shows that the used equipment is in good working condition, whereas, the concerned Ministry of Commerce has also clarified this issue, therefore, any contrary view taken by the Customs Authority in this regard, besides being totally illegal was also contrary to the facts and law. It is further contended by the learned counsel that the learned Customs Appellate Tribunal, after having examined all the factual and legal aspects of the case has recorded its finding to the effect that the respondent has not mis-declared the H.S. Code or the value of goods and was entitled to import the used Hino Concrete Transit Mixer as per Import Policy Order, 2013, whereas, the applicant has not been able to show any perversity or error in such finding of facts as recorded by the Customs Appellate Tribunal in the instant case. Per learned counsel, under section 196 of the Customs Act, 1969, an aggrieved party can agitate and refer only substantial legal question, which may arise from the order passed by the Customs Appellate Tribunal, whereas, question of fact cannot be referred to and examined by this Court while exercising reference jurisdiction. In support of his contention, learned counsel for the respondent has placed reliance in the following case-law:--

(1)Collector of Customs (Appraisement) v. Messrs Shabaz International 2007 PTD 202.

(2)Collector of Customs through Additional Collector of Customs, Karachi v. Messrs Qasim International Container Terminal (Pak) Ltd. 2013 PTD 392

(3)Messrs Real Trading Co. through Wali Muhammad, Karachi 2010 PTD 826.

(4)Abu Bakar Siddique v. Collector of Customs and others 2002 CLC 1066.

(5)Messrs Gold Trade Impex through partner and another v. Appellate Tribunal of Customs, Excise and Sales Tax through Collector of Customs, and 2 others 2012 PTD 377

(6)Collector of Customs, Karachi v. Messrs Ali Enterprises, Karachi 2006 PTD 651

(7)Collector of Customs, Model Customs Collectorate of PaCCS, Karachi v. Muzammil Ahmed 2009 PTD 266

(8)Collectorate of Customs v. Messrs Noman Chugtai 2007 PTD 153

(9)Sherzada v. Collector Customs, Peshawar 2011 PTD 301

(10)Collector of Customs, Port Muhammad Bin Qasim, Karachi 2008 SCMR 1538.

It has been prayed by the learned counsel for the respondent that instant Reference Application being misconceived in law and facts may be dismissed in limine, and alternatively, questions proposed may be answered against the applicant and in favour of the respondent.

6.We have heard both the learned counsel for the parties, perused the record and the impugned order passed by the Customs Appellate Tribunal with their assistance. Since a question as to jurisdiction of the Member (Judicial) Customs Appellate Tribunal, who has passed the impugned order in the instant cases has been raised by the applicant department as question (a), we would take up such question first as it relates to the very jurisdiction of the Customs Appellate Tribunal, who has passed the impugned order while sitting singly. We have observed that no finding has been recorded by the Customs Appellate Tribunal on the proposed question 'a', as neither such ground was raised by the applicant in the appeal nor it appears to have been argued on behalf of the applicant before the Customs Appellate Tribunal, therefore, no such finding has been recorded. Though it is now well settled legal position that a question of law, which has neither raised nor decided by the Customs Appellate Tribunal, cannot be raised for the first time before this Court under its reference jurisdiction. However, since the question raised relates to the very jurisdiction and the authority of the learned Single (Member) of the Customs Appellate Tribunal, who has passed the impugned order in the instant case(s), whereas, response to such legal controversy, by this Court would decide on important question of jurisdiction as defined under section 194-C of the Customs Act, 1969, we are inclined to record our finding on the proposed question, which may provide guidance and may regulate the functioning of the Appellate Tribunal and may also avoid any further controversy in this regard. It will be advantageous to reproduce section 194-C of the Customs Act, 1969, which reads as follows:--

"194-C Procedure of Appellate Tribunal:---(1) The powers and functions of the Appellate Tribunal may be exercised and discharged by Benches constituted by the Chairman from amongst the members thereof.

(2)Subject to the provisions contained in subsections (3) and (4), a Bench shall consist of one judicial member and one technical member.

(3)Every appeal against a decision or order [deciding a case involving duty, tax, penalty or fine exceeding five million rupees] shall be heard by a Special Bench constituted by the Chairman for hearing such appeals and such Bench shall consist of not less than two members and shall include at least one judicial member and one technical member:

Provided that the Chairman may, for reasons to be recorded in writing, constitute Benches including special Benches consisting of--

(a)two or more technical members; or

(b)two or more judicial members:

(3A) Notwithstanding anything contained in subsections (2) and (3), the Chairman may constitute as many Benches consisting of a single member as he may deem necessary to hear such cases or class of cases as the Federal Government may, by order in writing, specify.

(4)The Chairman or any other member of the Appellate Tribunal authorized, in this behalf by the Chairman may, sitting singly, dispose of any case which has been allotted to the bench of which he is a member where--

(a)the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 181; or

(b)

(c)in any disputed case, the difference in duty or tax involved or the duty or tax involved, or the amount of fine or penalty involved does not exceed [five million rupees].

(5)If the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ and the case shall be referred by the Chairman for hearing on such point or points by one or more of the other members of the Appellate Tribunal, and such point or points shall be decided according to the opinion of the majority of the members of the Appellate Tribunal who have heard the case including those who first heard it:

Provided that, where the members of a Special Bench are equally divided, the points on which they differ shall be decided by the Chairman.

(6)Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of the Benches thereof in all matters arising out of the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings.

(7)The Appellate Tribunal shall, for the purposes of discharging its functions, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (V of 1908), when trying a suit in respect of the following matters, namely:--

(a)discovery and inspection;

(b)enforcing the attendance of any person and examining him on oath;

(c)compelling the production of books of account and other documents; and

(d)issuing commissions.

(8)Any proceeding before the Appellate Tribunal shall be deemed to be judicial proceeding within the meaning of sections 193 and 228 and for the purpose of section 196 of the Pakistan Penal Code (Act XLV of 1860), and the Appellate Tribunal shall be deemed to be a Court for all the purposes of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898).

7.Section 194-C provides for the procedure to be adopted by the Customs Appellate Tribunal while deciding appeals filed under Section 194-A, Customs Act, 1969. Subsection (1) of Section 194-C defines that the powers and functions of the Customs Appellate Tribunal are to be exercised and discharged by Benches constituted by the Chairman amongst the Members thereof, whereas, subsection (2) provides that subject to the provisions contained in subsections (3) and (4) a Bench shall consist of one judicial Member and one technical Member. It may be observed that since subsection (2) is qualified and has been subjected to the provision as contained in subsection (3) and subsection (4), therefore, it has to be read in conjunction and applied keeping in view the conditions as given in subsection (3) and subsection (4) of Section 194-C. Subsection (3) of Section 194-C further qualifies the constitution of Bench and provides that every appeal against a decision or order deciding cases involving duty, taxes, fine or penalty exceeding five millions rupees shall be heard by a Special Bench constituted by the Chairman for hearing such appeal and such Bench shall consist of not less than two Members and shall consist of at least one judicial Member and one technical Member. However, such constitution of Special Bench has been qualified in view of the proviso to subsection (3) which provides that Chairman, for the reasons to be recorded in writing, can constitute Benches including Special Bench consisting of two or more technical Members or two or more judicial Members, hence the authority to constitute a larger Bench/Full Bench comprising of more than two technical Members or judicial Members has also been given to the Chairman of the Customs Appellate Tribunal. Subsection (3-A), which has been inserted by tax laws reforms (Amendment Ordinance, 2001) begins with non-obstante clause and provides that notwithstanding anything contained in subsections (2) and (3), the Chairman can also constitute as many benches consisting of a single Member as he may deem necessary to hear such cases or class of cases as the Federal Government may, by order in writing specify. Subsection (4) of section 194-C provides that the Chairman or any other Member of the Customs Appellate Tribunal authorized in this behalf by the Chairman can while sitting singly, dispose of any case which may be allotted to the bench of which he is a member, where (i) the value of goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 181 or (ii) in any disputed case, the difference in duty and taxes involved or the duty or tax involved or the amount of fine or penalty involved does not exceed five million rupees. In the instant case the appeal has been decided by the Chairman himself while sitting singly, whereas, admittedly, the value of goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 181, whereas, the difference in duty or tax involved in the case(s) does not exceed rupees five million. From perusal of hereinabove provisions and the facts and circumstances of the instant case, we are of the opinion that the Chairman, Customs Appellate Tribunal, while sitting singly, besides authorizing any other Member of the Customs Appellate Tribunal, has the authority to dispose of any case himself if the conditions as provided under Clauses (a) and (c) of subsection (4) of section 194-C, are applicable, whereas, such conditions are attracted in the instant case(s). In view of hereinabove, we are of the opinion that the impugned order has not been passed without jurisdiction by the Chairman (Judicial Member), Customs Appellate Tribunal, while sitting singly in the instant case(s). Accordingly, the question 'a' as proposed by the applicant in this regard is answered in affirmative against the applicant and in favour of the respondent.

8.As regards question 'b' as referred to hereinabove, relating to classification of imported vehicles by the respondent under P.C.T. Heading 8705.4000 and the finding as recorded by the Customs Appellate Tribunal in the instant case(s), we may observe that though, dispute regarding classification is primarily a question of fact, as it predominately involves factual scrutiny and examination of the goods, however, in some exceptional cases, such determination of facts may also involve legal interpretation and therefore, can be treated as mixed question of fact and law. From perusal of the facts as recorded by the Customs Appellate Tribunal in the instant case(s), and in view of the submissions made by the counsel for the parties in this regard, it has come on record that the respondent i.e. Eastern Construction Company, is a registered construction company, having a valid license under the construction and operation of the Engineering Works byelaws 1977, imported old and used Hino Concrete Transit Mixers under H.S.Code 8705.4000, in terms of para 9(ii)(5) of the Import Policy Order, 2013, which have been detained by the applicant department on the pretext that the same are not Concrete Transit Mixers, hence do not fall under H.S.Code 8705.4000, but according to applicant department, the same are normal trucks designed for transportation of goods and are classifiable under H.S.Code 8704.2299, which cannot be freely imported in terms of para 10 (vii) of the Import Policy Order, 2013. It is pertinent to note that the rate of duty under H.S.Code 8705.4000 in which the respondent sought clearance of the vehicles is 30%, whereas, under H.S.Code 8704.2299, which is applied by the department, the same rate of duty i.e. 30% is payable, therefore, there is no difference or dispute with regard to rate of duty and taxes in the instant case. The controversy in the instant case(s) revolves around the import status and the physical description of the vehicle(s) in question under the Import Policy Order, 2013, as old and used machinery, trucks and vehicles are not freely importable, however, there is an exception to this restriction as provided under para-9 (import of used plants, machinery and equipment) of the Import Policy Order, 2013. It will be advantageous to reproduce the relevant finding of the Customs Appellate Tribunal on the subject controversy to avoid repetition of facts, and to examine the version of both the parties, which has been dealt with by the Customs Appellate Tribunal in detail while reaching to the conclusion that the vehicles imported by the respondents i.e. old and used Hino Concrete Transit Mixers have been rightly declared under H.S.Code 8705.4000 and were importable in terms of para 9(ii) (5) of the Import Policy Order, 2013:--

"8. I have examined the case record and arguments advanced by the parties. The documents produced by the appellant before Customs Authorities and placed on record indicate that the subject vehicles are specialized vehicles. The provisions stipulated in Import Policy Order, 2013 regarding import of impugned vehicles into the country are clear and comprehensive and the appellant has duly submitted the requisite pre-shipment inspection certificates from recognized Pre-Shipment Inspection Companies, SGC Pakistan (Pvt.) Ltd., Karachi and UAE placed at Sr. No.1 of the list of Pre-Shipment Inspection Agencies in Appendix-D & H of the Import Policy Order, 2013.

9. As regards to the authority of Ministry of Commerce for determination of the import status/importability of the goods imported into Pakistan, in terms of Rules of Business, 1973, the Ministry of Commerce is the competent authority which governs the import/export policies of Pakistan. As such the determination of the import status and importability of any goods into the country is the sole privilege of the aforesaid ministry and under no circumstances can be assumed or usurped by any other ministry or forum. To illustrate the point at hand this forum may refer to one of the core functions of the Federal Board of Revenue, Islamabad which comprises of award of exemption of customs duty and taxes to imported/exported goods. Any other ministry or forum or authority cannot assume this function. The role of the Federal Board of Revenue and Appraisement Collectorates to the implementation of the import and export policies and rules framed by Ministry of Commerce, Islamabad. As such the rulings issued by the Commerce are binding on all the ministries and forums including Federal Board of Revenue and its allies Collectorates.

10. As regard subject goods are fulfilled the conditions for their import into the country as set forth by the competent authority namely Ministry of Commerce Islamabad in the relevant para 9(ii)(5) of the current Import Policy Order, 2013. The documents produced by the appellant before customs authorities and placed on record indicate that the subject imported goods are falls under sub-para (ii) and (5) of the Import Policy Order, 2013. With reference to above conditions, the record shows that the appellant is a duly registered construction company with Pakistan Engineering Council as per license of Pakistani Constructor/Operator vide Ser. PEC 273838 License No. 00957 dated 6-3-2013 valid upto 31-12-2013.

11. In view of the various factual and legal issues discussed above, I am of considered view that in terms of Rules of Business 1973 the appropriate ministry responsible for devising policies for regulation of trade is Ministry of Commerce which has clarified the issue vide letter No. 12(2)/2005-Imp.I dated 12-3-2012 and impugned vehicle is as per criteria laid down in para 9(5) of IPO, 2013 and also fulfilled condition of certificate from recognized Pre-Shipment Inspection Company which issued by Messrs SGS of Dubai, UAE and Pakistan placed at Sr. No.1 of the list of Pre-shipment Inspection Agencies in Appendix-D&H of the IPO, 2013 has reported that "Used Hino Concrete Transit Mixer Truck may be able to continue to serve for at least ten years. The subject specialized vehicle is being imported are to meet the standards etc. mention in the IPO and should be classified as the vehicles described therein. In view of the submissions and clarification was given by the counsel for appellant and documents provided as discussed above. I am of the view that there is enough evidence on record to allow the appeal of appellant and set aside the both impugned orders passed by the lower forums. I also hold that the imported impugned vehicle falls under PCT heading 8705.4000 and is importable in terms of 9(5) of IPO, 2013 so the same be assessed under the same code and released accordingly after payment of leviable duty and taxes thereon. The imposed penalty is not in accordance with law is hereby remitted. A delay and detention certificate be issued to appellant as to minimize the financial loss to appellant. Order passed accordingly."

9.From perusal of hereinabove detailed finding by the Customs Appellate Tribunal in the instant case(s) there seems no error or perversity on the finding of facts as recorded by the Customs Appellate Tribunal in the impugned order, which otherwise depicts correct legal position. We have noted that the import of the vehicle has been made by the respondent after complying with legal requirements, whereas, status and physical specification has duly been confirmed by the Ministry of Commerce, who has to regulate the import and export of the goods, and the applicant department otherwise, cannot draw any adverse inference in this regard. We may observe that the Customs Authorities without any factual or legal basis, have disallowed the release of the subject vehicles merely on the presumption that the respondent will not use the imported Concrete Transit Mixer for mixing and transportation of liquid cement, and may subsequently use such vehicles as normal loading trucks for transportation of other goods, by removing the welded, adopted and fabricated Concrete Transit Mixer. We may observe that Customs Authorities under the law are required to conduct examination, process the G.Ds, and to make assessment of the consignment imported "as presented" on the date of import, presentation of G.D, examination and assessment, and not on assumption or suspicion that subsequent to clearance of such consignment, the goods may be used for some other purpose by altering and changing its structure, particularly, when no such eventuality has surfaced. Such authority, if allowed to be exercised by the Customs Authorities, would result in multiplicity of unnecessary litigation and is likely to defeat the purpose and implementation of Import Policy as formulated by the Federal Government, keeping in view the economic conditions and financial implications, which may be involved while formulating such policy. Nothing has been brought on record either to show that any of the terms and conditions of para 9(ii)(5) of the Import Policy Order, 2013, have been violated by the respondent, nor it is the case of the applicant department that the respondent company does not require such vehicle for the purpose as defined in the aforesaid para of the Import Policy Order, 2013. Even, there is no allegation that the respondent Construction Company, has ever misused such import of old Hino Concrete Transit Mixer Trucks. It will be relevant to refer to a recent judgment passed by this Court on 22-9-2014 in C.P.No.D-4353/2014 in case of Messrs Baig Enterprises and Engineering v. Federation of Pakistan and others, wherein under similar circumstances, and after having dilated upon the relevant provision of Import Policy, the opinion of the Ministry of Commerce and Industries relating to the impugned vehicles i.e. Hino Concrete Transit Mixers and by referring to the decision of this Court as well as Hon'ble Supreme Court on the subject controversy, the impugned action by the department treating the imported old Hino Concrete Transit Mixer Trucks, to fall in H.S.Code 8704.2299, instead of H.S.Code 8705.4000, has been declared as illegal and without lawful authority. It will be advantageous to reproduce the relevant finding on the subject controversy, which is identical to the controversy as involved in the case, the same reads as follows:--

"9. From perusal of the above clarification, it appears that there is hardly any justification with regard to the apprehension or presumption on the part of respondents Nos.2 and 3, that Concrete Mixers in question, being modified or adapted version of the Vehicle/Mixer, after its release from Customs, would be used as Trucks for transportation of goods and not as specialized Vehicle i.e. Concrete Transit Mixer. It is pertinent to note that Ministry of Commerce, Government of Pakistan is the relevant final Regulatory Authority in so far as import status of an item is concerned. The Custom department (respondents Nos.2 and 3 in instant petition) are only there to regulate and implement such policy of the Federal Government, Notified from time to time through the Ministry of Commerce. In terms of section 3 of the Import and Exports (Control) Act, 1950 (XXXIX of 1950) it is the exclusive jurisdiction of the Federal Government to prohibit and or regulate the export and import of goods. The Customs authorities or for that matter FBR is not empowered to restrict or ban import or export of goods under the Customs Act, 1969 or the rules made thereunder. Though the respondents Nos. 2 and 3 can exercise powers and jurisdiction in terms of section 16 of the Customs Act, 1969, however such jurisdiction can only be exercised, once the Federal Government prohibits or restricts importation and exportation of certain goods by issuing Notification in this regard. In this context reference can be made to the case of Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petro Chemical Industries (Private) Limited, Peshawar and others reported in 2003 SCMR 370. The controversy in that case was that CBR in exercise of its rule making powers under section 219 of the Customs Act, 1969 while notifying the Manufacturing In Bond Rules of 1997 through sub-rule (6) of Rule 15 had imposed restriction on the export of shopping bags and plastic sheets to any country by land route, consequently manufacturers/exporters could no more export their goods to Afghanistan by land route, which prior to such amendment were being regularly exported. The exporters had challenged the said Notification before the Honorable Peshawar High Court and the writ petitions filed by the exporters were allowed against which the Government filed Civil Petition for leave to appeal before the Honorable Supreme Court, and after conversion of CPLA into appeal, the Honorable Supreme Court dismissed the appeals filed by the Government and at Para 9 of the judgment the following observation was made:

9. The plain reading of the above provisions would show that the aim of giving the rule making power to CBR is to carry out the purpose of the above statutes through subordinate legislation. The Federal Government in exercise of powers under section 3 of Imports and Exports (Control) Act, 1950 (Act XXXIX of 1950), may by an order published in the official Gazette prohibit, restrict or otherwise control the import or export of goods of any specified description and regulate the same through licence system and subsection (3) of section 3 of ibid Act, provides that section 16 of the Customs Act, 1969 shall be given effect in respect of goods, the import and export of which has been prohibited or restricted. Thus the Federal Government has the sole authority to regulate import and export of goods and impose conditions for grant of import and export licence, issue orders for carrying out the purpose of Imports and Exports (Control) Act, 1950 and make laws for the import and export of goods across the borders whereas the function of CBR is to give effect to Customs Act, 1969, Sales Tax Act, 1990 and the Central Excise Act, 1944 in the light of policy of the Federal Government as contemplated by the Imports and Exports (Control) Act, 1950. There is clear distinction between the powers of the Federal Government under Imports and Exports (Control) Act, 1950 and the powers of CBR under the Customs Act, 1969, Sales Tax Act, 1990 and Central Excise Act, 1944. The framing of policy relating to the import and export of goods with or without any restriction is the executive function of the Federal Government and the Central Board of Revenue, subservient to the policies of Federal Government, may frame rules under the above referred statutes subject to the provisions of section 16 of Customs Act under which it is the prerogative of the Federal Government to prohibit or restrict the bringing into or taking out of Pakistan any goods by any route including the goods enumerated in 3rd Schedule to the Customs Act, 1969. Under section 9 of the Customs Act, 1969 the CBR can declare the places as customs port, customs airport and land customs station for clearance of the goods to be imported or exported but is not empowered under said section or any other provision of law to restrict or prohibit the export or import of the goods through land route. (Emphasis supplied)

10.In the instant matter the Ministry of Commerce has categorically given its opinion in favour of the petitioner and there is no justifiable reason for not following such directions by respondents Nos. 2 and 3 as the objections being raised by them are based on presumptions and possibility of subsequent misuse of the Concrete Mixers by the petitioner. The Customs Authorities are required to make assessment of the goods on the basis of goods "as presented" and not on apprehension that subsequent to clearance, the goods would be put to some other use. The Ministry of Commerce has put certain restrictions insofar as import of Concrete Mixers is concerned, categorically in Para 9(ii) (5) of the Import Policy Order, 2013 which has been notified vide S.R.O. 193(I)/93 dated 8-3-2013 issued in exercise of powers conferred under subsection (1) of section 3 of the Imports and Exports (Control) Act, 1950 (XXXIX of 1950) and the petitioner has fulfilled such conditions. There is no other condition attached to importation of the goods in question and the petitioner is at liberty to seek clearance of the same and put it to use at his own sweet will. If the intention of the Federal Government would have been otherwise, there could have been imposition of any other condition being made applicable subsequent to the clearance of such Concrete Mixers, therefore, objection raised on behalf of the respondents Nos.2 and 3 to the effect that after clearance of the Transit Mixture Trucks, the same would be put to any other use, including transportation of goods, instead of being used as Concrete Transit Mixture Trucks is not sustainable, being premised on presumption and apprehension. Moreover, we may further observe that the respondents/department itself has been releasing similar vehicles under HS Code 8705.4000 imported by various other Importers, without raising any objection and it appears that the petitioner has been discriminated by the respondents in the instant case. In fact in our view it is also immaterial in the given facts and circumstances of the instant case, that as to whether the imported Concrete Mixers are to be classified under HS Code 8704.2299 or 8705.4000 as firstly, the import of such Concrete Mixers has been permitted by the Federal Government under Para 9(ii)(5) of the Import Policy Order, 2013, by "description" and without putting in any restriction of HS Code, and secondly, when the regulating authority has itself issued a specific clarification/direction dated 14-3-2014 in the case of petitioner, then there is hardly any justification left with respondents Nos.2 and 3 to arrive at any other or different conclusion.

11.In the case of Elga Controls (Supra) the Hon'ble Lahore High Court in a somewhat similar matter had the occasion to dilate upon the issue and the consequences arising out of a situation wherein it was apprehended by the respondents that after clearance of the Specialized Vehicles, the same would be put to any other use. The department in that case had alleged that the petitioner in that case, subsequent to clearance from Customs had converted "Spraying Lorries" into Truck Chassis frame fitted with engine and cab, and such Trucks as converted by the petitioner, were not importable under the Import Policy Order, 2008. The precise allegation of the department in that case was to the effect that the petitioner had declared at the time of import, such Trucks to be as "Spraying Lorries" as a specialized vehicle, whereas after clearance of the same, they had converted these "Spraying Lorries" into Truck chassis frame fitted with engine and cab. The matter came up for hearing before a learned Single Judge of the Lahore High Court and after examining the entire import policy and relevant provisions thereof, the Learned Single Judge of the Lahore High Court came to the conclusion as under:--

"The sprinklers Lorries like Hino, which the petitioners have imported, are classified under PCT Heading 8705-9000. The truck mounted on chassis with Cab, falls under PCT Heading 8706-0000. The Customs duty in the former case is more than the import of vehicle under the latter heading. An importer has to pay additional taxes and duties in spraying system for which the tax is separately leviable. The element of evasion of customs duty and taxes is, therefore, not involved. The only advantage, which an importer can take in the import of spraying lorry is that 5 years old truck due ban as per appendix " C " of the Import Policy Order, 2008-2009, is not importable while the spraying lorry of the same age, under the prevalent import policy, can be imported. There is no concession regarding charge and levy of duties and taxes on the import there is no prohibition or restriction or ban under the Import Policy Order, 2008-2009 for conversion of the vehicles into any other shape like truck, bus or a trailer. Various Collectorates in their communications addressed to Federal Board of Revenue, had admitted this fact. Even the Director of Directorate General Intelligence and Investigation in his letter dated 17-6-2009 admits that conditions for non-transferability or modification/ alteration in its original and use have not been imposed and such conditions are required to be imposed like dump trucks to avoid misuse of the Import Policy Order. The dump trucks after their import are not transferable for a period of 10 years after clearance from the Customs. No such ban or prohibition has been imposed under the existing policy, for the conversion of sprinkler lorry into commercial truck etc, therefore, such vehicles are not liable to be seized or detained on the plea of conversion/modification."

12.Since the facts and the legal controversy relating to question 'b' as proposed in the instant cases is identical to the facts and the controversy as already decided by this Court in the above terms, therefore, we would answer the question 'b' as proposed by the applicant in negative against the applicant and in favour of the respondent. Moreover, the decision of the Customs Appellate Tribunal in this regard is pre-dominately based on facts, which otherwise depicts correct legal position, hence no exception can be drawn by this Court, while exercising reference jurisdiction under section 196 of the Customs Act, 1969.

Instant Reference Applications stand disposed of in the aforesaid terms.

HBT/C-1/SindhOrder accordingly.