IMRAN KHAN VS DEPUTY DIRECTOR, INTELLIGENCE AND INVESTIGATION-FBR, MULTAN
2019 P T D (Trib.) 1326
[Customs Appellate Tribunal]
Before Ch. Muhammad Shabbir Gujjar, Member (Judicial)
IMRAN KHAN and 2 others
Versus
DEPUTY DIRECTOR, INTELLIGENCE AND INVESTIGATION-FBR, MULTAN and another
Custom Appeals Nos. 452, 453 and 454/LB of 2017, decided on 25/06/2018.
Customs Act (IV of 1969)---
----Ss. 2(s), 16, 156(1)89(i) & 17---Imports and Exports (Control) Act (XXXIX of 1950), S.3---SRO No. 499(I)/2009, dated 13-6-2009---Smuggling---Seizure and confiscation of vehicle alleged to be smuggled one---Seizing agency intercepted a truck, reported to be smuggled/non-duty paid---Driver of the vehicle in question produced photo copies of registration book, goods declaration, sales tax invoice and so many other documents, but department seized the vehicle---Driver, owner of the vehicle, were called upon to show-cause as to why the seized vehicle might not be confiscated and penal action taken against the importer and driver---Validity---Appellant importer of the vehicle, which was a registered Construction Company with Pakistan Engineering Council, had duly annexed with the appeal bill of lading, invoice, cash payment receipt challan, sales tax invoice, preshipment inspection certificate, bill of entry verification/confirmation of bill of entry/import documents etc.---Legal requirements were furnished, in circumstances at the time of examination as well as adjudication---Neither pre-shipment inspection certificate nor list of pre-shipment company had ever been challenged by the department---Import Policy Order, 2013 had provided that Construction Companies were allowed to import specialized vehicle mounted machinery, crane lorries etc.---Ministry of Commerce had earlier clarified that Truck Mounted Cranes/Crane Lorries were importable subject to fulfilment of conditions laid down in Para. 9(ii)(v) of Import Policy Order, 2013---Department was at liberty to check mis-use of such like specialized truck and take action under law, but not authorized to disturb the genuine companies who imported the same for its special purpose and use---Record had revealed that the department had itself admitted the validity of imported documents as well as registration documents---Vehicle in questions was cleared lawfully through goods declaration on payment of customs duty and other taxes---Import documents were valid, genuine and verified one---No tampered chassis number was noticed by the Forensic Laboratory Report---Appeals were accepted by the Tribunal and impugned orders passed by the lower fora, were set aside---Department was directed to release the vehicle unconditionally to its lawful owner after verification.
Messrs Elga Control v. Federation of Pakistan and others 2010 PTD 487; Messrs Eastern Construction Company's case 2015 PTD 963 and 2010 PTD 467 ref.
Abdul Salam Sajid for Appellant.
Awais Komboh for Respondent.
Date of hearing: 13th June, 2018.
JUDGMENT
CH. MUHAMMAD SHABBIR GUJJAR, MEMBER (JUDICIAL).---I intend to dispose of the above mentioned appeals which were preferred by the appellants against Order-in-Original Nos.248, 249 and 250/LB of 2017 passed by the learned Collector of Customs (Adjudication) Faisalabad through this single judgment as same question of law and facts are involved therein.
2.Brief facts of the case as reported by the Deputy Director, Intelligence and 11 Investigation-FBR, Range Office, Multan (herein after referred to as the "seizing agency") are that in pursuance of an information on 05.03.2017, the staff of the seizing agency intercepted a Hino Dumper truck bearing Reg. No.TAD-118/Lasbella (12 wheeler) near Chowk Metiala Khanewal Road as the said vehicle was reported to be smuggled/non-duty paid. On demand, the driver of vehicle introduced himself as Abdul Hadi son of Haji Abdul Bari resident of Qila Abdullah and produced photo copies of registration book, GD No. LTNB-HC-208 dated 25.07.2013, Invoice No. 459/2013 dated 09.05.2013, Verification/ Confirmation No.1015 dated 26.09.2013 issued by Motor Registration Authority, Lasbella and pre-registration/verification of documents No.372 dated 30.12.2013 issued by Principal Appraiser Customs, NLC, Lahore regarding legal import into the country of the said vehicle. On physical examination, the chassis frame number of the said vehicle was found tampered/stilt punched. The vehicle along with driver was brought into the office of the seizing agency for further probe into the matter. The driver of the said vehicle could not satisfy about the tampering/self punching of the chassis frame number. The driver of the said vehicle made a request to the seizing agency to detain his vehicle till the production of further legal import documents/lab test. Therefore, the same was detained under Sections 2(kk) and 17 of the Customs Act, 1969.
3.Reportedly, as per produced documents, Used Hino Prime Mover Truck was imported by M/g Rising Sun Construction, 5-Classic Complex 35-M Model Town Extension, Lahore in July, 2013 but the detained vehicle is Dumper truck registered in the name of Imran Khan son of Nawal Khan son of Kanigardam P.O. Tehsil Lodh District South Waziristan Agency A/P, Hub. Thus, the detained dumper Truck is smuggled one. The import documents of Prime Mover have been misused to hoodwink the Government agency and the chassis No.JHEFY2PULA0010707 is punched on this smuggled Dumper Truck. So the detention of the said vehicle was converted into seizure on 13.03.2017 at about 1500 hours in terms of Section 168 of the Customs Act, 1969 after adopting all legal formalities. Notice under Section 171 of the Customs Act, 1969 was sent to the owner/driver to their given addresses.
4.The vehicle was sent to FSL, Islamabad for chemical treatment. The Incharge Forensic Science Laboratory, Islamabad after due examination of the subject vehicle vide Lab Report No. 644/2017 dated 14.04.2017 reported that "No number other than JHEFY2PULA0010707 has been developed after chemical treatment".
5.Reportedly, the claimant of the subject vehicle produced GD bearing Machine No. LTNB-HC-208 dated 25.07.2013. Invoice Ref No. 459/2013 dated 09.05.2013 pertaining to Maersk Line Bill of Lading bearing S.No.866943938 dated 13.05.2013 in support of the contention that the subject vehicle is legally imported and has been acquired in a lawful manner. Reportedly, GD reveals that one old and used Hino Prime Mover truck bearing chassis No. JHEFY2PULA0010707 and manipulated Invoice Ref. No. 459/13 dated 09.05.2013 reveals that one old and used Hino Prime Mover truck bearing chassis No. JHEFY2PULA0010707 was imported but the bill of lading bearing S.No.866943938 dated 13.05.2013 pertaining to MAERSK Line and identification plate affixed on the vehicle describes the vehicle as used Hino Prime truck bearing chassis No. FY2PULA10707 which is quite different from the Prime Mover truck bearing chassis No. JHEFY2PULA0010707 mentioned in GD bearing machine No. LTNB-HC-208 dated 25.07.2013. The invoice Ref No.459/13 dated 09.05.2013, GD No. LTNB-HC-208 dated 25.07.2013 and invoice Ref No. 459/13 dated 09.05.2013 pertaining to MAERSK Line and Bill of Lading bearing S.No. 866943938 dated 13.05.2013 relate to one old and used Hino Prime Mover beaming Chassis No. JHEFY2PULA0010707 or FY2PULA10707 (as per bill of lading) but the subject vehicle is a Hino Dumper truck bearing chassis No. JHEFY2PULA0010707, which is quite different from Hino Prime Mover truck.
6.In view of above, the seizing agency alleged that the subject vehicle is a smuggled Hino Dumper truck which has been tried to give coverage under GD No. LTNB-HC-208 dated 25.07.2013 and other documents relating to one Hino Prime Mover truck. Therefore, the same is liable to outright confiscation under Sections 2(s) and 16 of the Customs Act, 1969 read with Section 3(1)3 of the Imports and Exports (Control) Act, 1950 punishable under Section 156(1)89(i) of the Customs Act, 1969 read with SRO 499(I)/2009 dated 13.06.2009.
7.The seizing agency made out a seizure case No.14/2017/MUX dated13.03.2017andforwardedthecasepapersforadjudication under endorsement No.CII(V)Cus/Seiz/ MUX/14/2017/439 dated 26.04.2017.
8.On the basis of above mentioned facts, the respondents namely (i) Abdul Hadi son of Haji Abdul Bari, resident of Qila Abdullah, (driver), (ii) Imran Khan son of Nawal Khan, resident of Kanigardam P.O. Tehsil Lodh, District South Waziristan Agency A/P, Hub (registered owner) and (iii) Messrs Rising Sun Construction Company, 5-Classic Complex, 35/M, Model Town, Extension, Lahore (importer) were charged under sections 2(s) and 16 read with Section 187 of the Customs Act, 1969 and Clause (ii) of S.No. 9 of the Import Policy Order 2016(SRO345(I)/2016dated18.04.2016)readwithSection 3(1)3 oftheImportsandExports(Control)Act, 1950 punishableunder Section 156(1)89(i) of the Customs Act, 1969 and SRO 499(I)/2009 dated 13.06.2009 and were called upon to show-cause under Section 180 of the Customs Act, 1969 as to why the seized vehicle might not be confiscated and penal action under the aforementioned provisions of law might not be taken against them.
9Aggrieved by this order the appellant filed the present appeal before this Tribunal on the following grounds:-
(c)That so far as the allegation of difference of digits between the chassis number and number mentioned on bill of lading is concerned, it is submitted that respondent No.2 has lost sight that entire chassis number is same as mentioned on the bill of lading and difference of digits i.e. "00" has no significance as confirmed by the Hino Company vide its letter dated 06.12.2012 wherein it was made clear that in some countries the digits in beginning are common where in other countries these are not in routine practice. Hence, the observation of respondent No.2 in the impugned order is baseless and carries no weight.
(d)That it is worth mentioning that under the Import Policy Order, there is no restriction for conversion of vehicle from Prime Mover to in any kind of the vehicle used for construction work and held by the Hon'ble High Court of Sindh at Karachi in case of "Messrs Elga Control v. Federation of Pakistan and others" reported as 2010 PTD 487.
(e)That furthermore, the Hon'ble High Court of Sindh at Karachi in case of Messrs Eastern Construction Company reported as 2015 PTD 963 held that there is no such condition attached to importation of goods in question and importer is at liberty to seek clearance of the same and put it to use at his own sweet will and the said judgment was challenged by the department before the Hon'ble Supreme Court of Pakistan. However, Apex Court upheld the aforesaid judgment by dismissing the appeal of respondent department vide order dated 04.04.2017.
(f)That so far as the allegation of HP of the vehicle is concerned, it is clarified that the appellant submitted entire import documents including pre-shipment certificate that is statutory document issued term of Appendix-H of the Import Policy Order, 2013 and according to which the Horse (HP) of the vehicle shall be determined by the company listed in Appendix-H and, in this regard, Ministry of Commerce vide letters dated 26-11-2014 and 05.05.2010 has also categorically chiliad that HP be determined by PSI company and Federal Board of Revenue vide letter dated 10.05.2016 endorsed the said letters by circulating, it in all field formation. Hence, the allegation regarding HP is nothing but lack of knowledge /information on the part of respondent No.2 while passing the impugned order.
(g)That the issue of HP was again put up by the Board and FBR, vide letter dated 01.09.2016 warned the field formation not to ignite the issue of HP since same has been resolved by the Ministry of Commerce, thus, question of HP of vehicle in question raised by the respondent department again by its own does not arise and carries no weight.
(h)That the show-cause notice is void-ab-initio and illegal as the seized vehicle is legally imported. The seizure of a duty paid vehicle is beyond the lawful jurisdiction of the seizing agency.
(i)That the seizing agency has itself admitted the validity of imported documents as well as registration documents. The vehicle in question i.e. Old and Used Hino Prime Mover Truck was cleared lawfully through Goods Declaration No.KPPI-HC-21862 dated 17.12.2012 on payment of Customs duty and other taxes amounting to Rs.9,10,714/-.
(j)That after importation of the vehicle, the appellant lasfully registered the same with the Excise and Taxation Department (Motor Registration Branch) after fulfilling the rules and regulations.
(k)That the chassis No. JHEFY2PULA-0010813 is admittedly same on the GD, Registration Book and upon physical verification as well. The removable identification metal plate also bears the same number except the initial alphabet "JHE". The said metal plate or B/L is neither crucial nor legal in the verification process. The correct and lawfully established method of verification of chassis /identification of any vehicle is the chassis number as is engraved on the chassis viz-a-viz Goods Declaration. Therefore, the metal plate cannot be made basis for identification of vehicle. Normally metal plate of vehicles does not display the full alphabets of complete chassis number. So, this objection by the seizing agency is flimsy and frivolous.
(l)That the only basis of seizure is premised on the sole but ill-conceived ground, i.e. the present description of vehicle is Hino Dumper Truck which does not match with the import documents as the GD shows the description that at post-importation stage the Prime Mover Truck was modified/altered to Dumper Truck to meet our requirements with due intimation to the concerned Excise and Taxation department. Be that as it may, there is no Customs law permitting to seize a vehicle on the illegal pretext that it has been modified or added with some functional attachments after its legal importation on payment of Customs duty/taxes. This act is simply beyond the lawful jurisdiction of the seizing agency.
(m)That the seizing agency has wrongly presented that once the legally imported vehicle has been modified or added with some attachments then the import documents thereof are rendered irrelevant. Obviously this postulates is not only preposterous but also defies intent of law and norms of justice. The seizing agency is absolutely at a loss to cite any law according to which modification / alteration of a legally imported vehicle deprives such vehicle of its legitimate status. How a post importation modification in a lawfully imported vehicle can go to condemn it as smuggled one. It may be appreciated that it is sheer injustice and blatant illegality.
(n)That there is no denying the fact on the part of the seizing agency that the import documents are valid, genuine and verified one, and secondly the seized vehicle bears no tampered chassis number as the Forensic Lab Report has confirmed that no other number has been developed after chemical treatment. Thus, the seizing agency has impliedly admitted that given the chassis number it is the same vehicle legally covered by the import documents. It is submitted that having been privy to all these facts, the seizing agency knowingly seized the vehicle with mala fide only to show artificial and fabricated boost up in their performance and efficiency at the stake of the suffering of the innocents.
(o)That without any prejudice to above, it is submitted that Prime Mover is in fact a tractor unit or traction unit characteristically heavy-duty towing engine that provides motive power for hauling a towed or trailered load (Wikipedia. Org). Being so, attachment/addition of a trailer or Prime Mover into use to get the required function. Therefore, seizing agency's contention that prime mover and dumper truck are two different, independent and mutually exclusive vehicles is totally unsustainable and unsubstantiated.
(p)That the show-cause vide para-7 has invoked section 9(ii) of the Import Policy Order, 2016 whereas the show cause notice is completely mute about any ground/reason to invoke the said provision. Nevertheless without prejudice to above, it is submitted that we the importer, being a construction company, imported the vehicle lawfully and the same is registered in the name of Company. The vehicle falls in the list of construction machinery as per Appendix-I of the Policy, therefore, there is no violation of the aforesaid legal provisions by the appellant.
(q)That in view of the above factual and legal position, the allegation of smuggling and legal provisions as alleged in the show-cause notice are baseless, unwarranted and unjustified liable to be set aside. The prosecution has completely failed to support the allegation of possession of smuggled vehicle with any valid or sufficient evidence whatsoever.
(r)That the appellant craves this learned Tribunal to grant the right to add verbal/written submissions during proceedings of the case. Nevertheless it is prayed that the addition of fresh charge/ allegation if any, by the seizing agency/prosecution, beyond the scope of show-cause notice will have no legal effect.
(s)That the impugned order passed by respondent No.2 is result of misreading, non-reading of the record, misinterpretation and mis-application of law. This also shows non-application of independent judicial mind by respondent No. 2 while dealing with the quazi judicial matters. The impugned order being void, illegal, having been passed in after disregard of the settled principle of natural justice and fairness and on wrong premises of law is liable to be struck down.
10.On the other side learned counsel for the respondent opposed the arguments advanced by the learned counsel for the appellant and supported the impugned order in original and submitted that:-
11.It is submitted that the appellant produced documents before the Investigating Officer in support of his contention that the vehicle seized by the respondent department has been acquired in a lawful manner. The GD bearing Machine No.LTNB-HC-208 dated 25-07-2013. Invoice dated 09-05-2013 pertaining to Maersk Line Bill of Lading bearing S.No. 866943938 dated 13-05-2013. The perusal of the above said GD reveals that one old and used Hino Prime Mover truck bearing chasses No.JHEFY2PULA0010707andperusalofmanipulated invoice dated 09-05-2013 reveals that one old and used Hino Prime Mover truck bearing chases No.JHEFY2PULA0010707 has been imported but the bill of lading baring S.No. 866943938 dated 13-05-2013 pertaining of MAERSK LINE and identification plate affixed on the vehicle describes the vehicle as used Hino Prime Mover truck which is quite different from the Hino Prime Mover truck bearing chassis No.JHEFY2PULA0010707 mentioned in the GD bearing machine No.LTNBHC-208 dated 25-07-2013 and invoice dated 09-05-2013.
12.It is clear that the subject vehicle is a Hino Dumper truck which has been tried to coverage under GD dated 25-07-2013 and tried to give coverage under GD NO.LTNB-HC-208 dated 25-07-2013 and other documents relating to one Hino Prime Mover truck. The subject vehicle is a Hino Dumper truck which is smuggled one and has been brought into the country through unauthorized route and is, therefore, liable to outright confiscation . In fact the seized vehicle is in the form of 12 wheeler dumper truck and is meant for 324 Hors Power which is classification under PCT Heading 8704-2190 whose importation is banned in used/second hand condition under Appendix C of Import Policy Order, 2013 in vogue.
13.On the basis of the afore stated poins, it is evident that the documents which is the only argument/evidence advanced by the respondents, cannot be linked with the seized vehicle, and hence are quite irrelevant for the purposes of disproving the stand point of the department.
14.Seizure report of the said case was submitted to the adjudication authority Multan who decided the case on merits and passed Order-in-Original No.248-49/2017 dated 09-08-2017 in favour of the seizing agency by confiscating the vehicle in favour of the government.
15.The seized vehicle is Hino Dumper Truck and the same is smuggled one and brought into the country through unauthorized routes. Theownerofthe vehicle misused the GD NO.LTNB-HC-208dated25-07-2013 to cover up the smuggled vehicle and other documents relating to one Hino Prime Mover truck. The Order-in-Original is the besteyes of law,beingbaseduponmeritsandfactsavailableon record.
16.This is baseless and concocted story that the old and used Hino Prime Mover truck and perusal of manipulated invoice dated 09-05-2013 reveals that one old and used Hino Prime Dumper truck imported but the bill of lading bearing S.No.866943938 dated 13-05-2013 pertaining to MAERSK Line and identification plate affixed on the vehicle describes the vehicle as used Hino Prime Mover truck which is quite different from the Hino Prime Mover truck.
17.The seized vehicle is in the form of 12 wheeler dumber truck and is meant for 324 Horse Power engine capacity which is classifiable under PCT Heading, 8704.2190 whose importation is banned in used/second hand condition under Appendix C of Import Policy Order, 2013.
18.As misleading in nature the impugned vehicle cannot be categorized under the PCT Heading 8705.9000 to avail the benefit of the Clauses 1 and 5 of sub-para (ii) of Paragraph 9 of Import Policy Order, 2013. There is no proof of its being imported under the said Heading either. The said does not attract the logical grounds of being imported and later being converted into transport truck. The vehicle in question is original Hino Dumper Truck. The every case has its own merits and unique circumstances mere citing a case law does not absolve the petitioner of his responsibilities to prove that the seized vehicle has been legally imported into the country upon payment of duty and taxes leviable. Contention of the petitioner quoting the judgment reported as 2010 PTD 467 explains the significance of the conversion of the vehicle after its import. Rather the particulars of the impugned vehicle don't match the particulars as stated under PCT Heading 8705.9000, the detailed examination of the impugned vehicle classifies it under the PCT Heading 5705.2190 which is not allowed to be imported in Pakistan. Similarly negligence at the time of clearance is curable at the later stage within the provision of Customs Act, 1969. In fact the importer has defeated the substances objective and spirit of import prohibition imposed on the old and used or second hand vehicle in the garb of special purpose vehicle and in that eventuality, it is obvious that the under the spirits and purpose of the legislation will be thwarted and frustratedcausingadverseimpactonthenationali.e.autoindustry and Government exchequers. However it is stated the Order-in-Original No.248-49/2017 dated 09-08-2017 is being based upon merits and facts available on record and is the best in the eyes of the law.
20I have heard learned counsel for the appellant as well as learned counsel for the respondent and perused the record available on file. I find that in order to resolve the controversy provisions of Import Policy Order, 2013 are to be consulted. The relevant provisions of Import Policy Order, 2013 with regard to import of specially designed vehicle is re-produced for convenience as under:-
"S.No. 10(vii) Mobile Cranes/lorries ( 8705.1000) by industrial units subject to certification by the competent authority of exporting country or a recognized pre-shipment company listed at Appendix-H to the effect that said machinery/transport equipment (a) is complain with Euro-II emission standards or not older than ten years, and (b) is in goody working condition/has a remaining productive life of five years."
21.The second requirement as per Chapter 87 is that the Trucks imported are not meant for transport of goods and consisting of motor vehicle chassis on which a Cab and rotating crane are permanently mounted. The only exception is that the Trucks with self loading devices are excluded. The basic difference that if Trucks imported are meant for transport of goods, than it falls under head 8704 and if it is a Specialized Vehicle Specially constructed or equipped with various devices that enable them to perform certain non-transport functions i.e. the primary purpose of a vehicle is not the transport of persons of goods, than it falls under heading 8705.
22.If all the above requirements are found in the imported machinery than it would fall under PCT Heading 8705.1000 as is prescribedunderS.No.10ofAppendix-CofImportPolicyOrder, 2013.
23.Perusal of record reveals that the appellant is a registered Construction Company with Pakistan Engineering Council. They have duly annexed with the appeal Bill of lading, Invoice, cash payment receipt Challan Sale Tax Invoice Pre-shipment Inspection Certificate, Bill of Entry, Verification/confirmation of bill of entry/import documents etc thus all the legal requirements were furnished at the time of examination as well as adjudication. It is pertinent to note that neither pre-shipment inspection certificate nor list of pre-shipment Company has ever been challenged by the department. Para 9(v) of the Import Policy Order, 2013 provides that construction company are allowed to import specialized vehicle mounted machinery, crane lorries etc. specified in Appendix-I. It would be appropriate to mention here that Ministry of Commerce, Islamabad, had earlier clarified that the Truck mounted Cranes/Crane Lorries are importable subject to fulfillment of conditions laid down in para 9(ii)(v) of Import Policy Order, 2013.
24.There is physical examination report conducted by the committee constituted by the department but all what is apparent is that the truck could be used as transport goods. On the basis of probabilities and suppositions no decision could be made. The department is always at liberty to check mis-use of such like of specialized truck and take action under law, but not authorized to disturb the genuine companies who imported the same for special purpose and used for the same. In similar situation while dealing which custom Appeal No.58/LB/2016 decided on 10-07-2016 the Divisional Bench of this Tribunal has held that old and used Hino Trucks mounted fall under PCT Heading 8705.1000 and not under PCT Heading 8704.2190 as assessed by the Department. There is nothing in rebuttal with the department that the above mentioned judgments have been disturbed or set aside by the superior forums. Under the Import Policy Order there is no restriction for conversion of vehicle from Prime Mover to in any kind of vehicle used for construction work and held by the Honorable High Court of Sindh at Karachi in case of "Messrs Elga Control v. Federation of Pakistan and others" reported as 2010 PTD 487"
25.Furthermore, the Honorable High Court of Sindh at Karachi in case of Messrs Eastern Construction Company reported as 2015 PTD 963 held that there is no such condition attached to the importation of goods in question and importer is at liberty to seek clearance of the same and put it to use at his own sweet will.
26.The record revealed that the issue of Horse Power was against put up by the Board and FBR vide letter dated 01-09-2016 warned the authority not to agitate the issue of Horse Power since same has been resolved by the Ministry of Commerce . The record further revealed that the seizing agency has itself admitted the validity of imported documents as well as registration documents. The vehicle in question i.e. Hino Prime Mover Truck was cleared lawfully through Goods Declaration No.LTNB-HC-208 dated 25-07-2013 on payment of Customs duty and other taxes. That there is no denying the fact on the part of the seizing agency that the import documents are valid genuine and verified one. Secondly the seized vehicle bears no tampered chassis number as the Forensic Lab Report has confirmed that no other number has been developed after chemical treatment. Thus the seizing agency has admitted that given the chassis number is the same.
27.The issue of importability has been examined and decided by the Honourable High Court of Sindh. The relevant portion of the said judgment is reproduced hereunder:-
"whilethelearnedcounselforthepetitionerscontend that item (5) is independent of item (I) meaning thereby the once company has been incorporated in with the objectives of providing construction service notwithstanding that it has any actual need, it can import specialized vehicle mounted machinery listed in item (5) including prime movers of 380 HP and above, even for the very purpose of selling these prime movers in the open market, as ordinarily as a commercial importers would have done.
To us it seems to be a gross misreading and abuse of the framework defined by the said Policy and a clear divergence from the intent and purpose for which the said import facility has been formulated benefiting the construction industry. If the sole intent would have been for a company to name itself as a construction entity and start importing prime movers for the very purpose of selling those to the open market, one wonders why said facility was restricted to construction company only. The policy would have made a general availability of such facility to every person. In our view the word " also " present in item (5) very clearly depicts that provision of the said item has to be read along with item (l) of clause 9(ii) of the policy, which means that there as to bean actual bona fide need for a construction company for its projects in Pakistan, where the imported prime movers and naming it as an ABC construction co, whose actual business is to import prime movers and sale them to the open market by taking the benefit provided by the said policy is an utter abuse of the facility made available for the purpose of enhancing and boosting construction industry in the country. The said provision clearly shows that the government by offering these incentive wanted to encourage construction industry in the country which is said to be one of the largest employer as it propels more than 20 sib-industries e.g. cement, steel cooper wire, aluminium glass and allied construction material. ABC construction co by merely taking the benefit of its name and incorporation, cannot be allowed to import prime mover and sell them to the open market under the umbrella provided by the said policy. As by doing so it is not furthering aims and objects for which these incentives are provided to the construction industry. Additionally the proposition propounded by Mr. Khalid Jawed Khan also negates the settled principle of harmoniousinterpretation of statute the reason that if the proposed meaning are accepted and it is held that the provision of item 9(ii) (5) are independent of item 9(ii) (I) then such interpretation would render the provisions of item 9(ii)(1) as redundant"
28.In view of what has been observed above, there is no force in the arguments advanced by the learned counsel for the respondent therefore, the appeal bearing Nos. 452/LB/2017,453/LB/2017 and 454/LB/2017 are hereby accepted and the order passed by the lower fora are set aside. Respondents are directed to release the vehicles unconditionally to its lawful owner after verification. Parties be informed through registered post A.D. or by UMS.
File be consigned to the record after completion.
HBT/44/Tax(Trib.)Appeals accepted.