2019 P T D 1712
[Balochistan High Court]
Before Naeem Akhtar Afghan and Zaheer-ud-Din Kakar, JJ
The COLLECTOR OF CUSTOMS, MODEL CUSTOMS COLLECTORAT E, QUETTA
Versus
Messrs AL-HABIB ENTERPRISES AND ENGINEERING and oth ers
Customs Reference Applications Nos. 43 to 48 of 201 8, decided on 31st January, 2019.
Customs Act (IV of 1969)---
----Ss. 196, 193, 80 & 83---Reference to High Court ---Appeal to Collector (Appeals)---Assessment and
clearance of goods---Scope---Respondent had importe d concrete transit mixer trucks which were cleared
after submission of relevant documents---Customs au thorities, on inquiry, came to know that years of
manufacture of trucks were mis-declared---Additiona l Collector of Customs (Adjudication) issued show-
cause notice and imposed penalty---Appellate Tribun al, on appeal, set aside the order passed by
Additional Collector of Customs (Adjudication)---Va lidity---Held; after assessment of leviable duty an d
taxes under S. 80, Customs Act, 1969 and payment th ereof and after clearing the vehicles under S. 83,
Customs Act, 1969, the available remedy of filing a ppeal under S. 193, Customs Act, 1969 was not
availed by the concerned officials of the Collector ate of Customs---Additional Collector of Customs
(Adjudication) had no jurisdiction under the provis ions of the Customs Act, 1969 to issue show-cause
notice and to pass order-in-original---No question of l aw having arisen out of the impugned judgments
passed by Appellate Tribunal warranting interferenc e by High Court under S. 196, Customs Act,
1969---References were dismissed, in circumstances.
Syed Ikhlaq Shah, Assistant Attorney General along with Aminullah Representative of Customs
Department for Applicants.
Abdul Sami Babar for Respondent No.1.
Date of hearing: 27th November, 2018.
JUDGMENT
NAEEM AKHTAR AFGHAN, J.--- This consolidated judgment disposes of Custom Refer ences Nos.
43, 44, 45, 46, 47 and 48 of 2018 as common questio ns of facts and law are involved in all the
references.
2. Relevant facts of the cases are that respondent N o.1 had imported six used Hino Concrete Transit
Mixer Trucks (hereinafter "the vehicles") from Chin a via Karachi port to NLC Dry Port Quetta. Along
with GDs respondent No.1 had submitted Pre-shipment Inspection Documents issued by "Bureau Veritas
Shinghai China" dated 02.12.2016 certifying the age of the above vehicles not more than five years,
Euro-II emission compliant and manufactured by Orig inal Equipment Manufacturer (OEM) as required
under Import Policy Order, 2016.
After due process of verification of PSI Certificat e by email examination and appraisement through
WeBOC, the vehicles in references Nos.43, 44, 45, 4 6 and 48 of 2018 were assessed for leviable duty an d
taxes amounting to Rs.19,55,717/- each. The vehicle in Custom Reference No.47/2018 was assessed for
leviable duty and taxes amounting to Rs.1079,779/-.
After payment of the leviable duty and taxes three vehicles were released to respondent No.1 on
25.01.2017 and three vehicles were released to resp ondent No.1 on 11.03.2017.
3. After payment of leviable duty and taxes by respo ndent No.1 and after clearance/release of vehicles
to respondent No.1, query was made by the Custom of ficials from Hino Pak Motors Limited (the
Manufacturer's Representative) about the year of ma nufacture of the vehicles.
The Manufacturer's Representative on behalf of its principal Hino Japan informed the custom officials
vide separate letters dated 18.05.2017 and 22.05.20 17 that the dates/years of manufacture of the six
vehicles are 14.02.2004, 14.11.2006, 08.01.2007, 30 .07.2007 and 01.08.2007.
4. In pursuance of above, the respondent No.1 was se parately issued six show-cause notices dated
06.07.2017 for the six imported vehicles. Relevant paras of the show-cause notices read as follows:
"As such, on the basis of said procured information , it has become evident that the above said Used
Hino Concrete Mixers have been imported by misdecla ring their year of manufacture with the
connivance of the said Pre-shipment Inspection Comp any in violation of Sections 16, 32(1) and
32A of the Customs Act, 1969 and paragraph 9(ii)(5) of Import Policy Order, 2016 notified vide
SRO:345(I)/2016 dated 18/04/2016 read with subsecti on (1) of section 3 of the Imports and
Exports (Control) Act, 1950 punishable under clause s 1, 9, 14, 14A and 43 of subsection (1) of
section 156 of Customs Act, 1969 and are liable to confiscation under the said provisions of law.
Therefore, the owner(s)/claimant(s) of the above me ntioned goods are hereby called upon in terms of
section 180 of the Customs Act, 1969 to show cause as to why the impugned used Hino Concrete
transit mixer should not be ordered to be confiscat ed under clause clauses 1, 9, 14, 14A and 43 of
subsection (1) of section 156 of Customs Act, 1969 for violation of Sections 16, 32(1) and 32A of
the Customs Act, 1969 and paragraph 9(ii)(5) of Imp ort Policy Order, 2016 notified vide S.R.O.
345(I)/2016 dated 18.04.2016 read with subsection ( 1) of section 3 of the Imports and Exports
(Control) Act, 1950.
5. After hearing all the concerned, Additional Colle ctor, Collectorate of Customs (Adjudication)
Custom House Quetta passed separate orders in origi nal dated 27.11.2017, imposing the following
penalty for five vehicles:
"Therefore, I impose a penalty of Rs.2,000,000/- (T wo Million) on the respondents i.e. Messrs Al-
Habib Enterprises and Engineering for violation of above mentioned provisions of law. A penalty
of Rs.10,00,000/- (Rupees One Million) is imposed o n PSI Company Messrs Bureau Veritas
Pakistan for facilitating clearance of non-importab le vehicle as per above details"
For the sixth vehicle, the following penalty was im posed by Additional Collector, Collectorate of
Customs (Adjudication) Custom House Quetta upon res pondent No.1 by order-in-original dated
27.11.2017 in Custom Reference No.47 of 2018:
"In the light of foregoing the charges levelled in the show-cause notice i.e. Transit Mixer Truck, bei ng
older than five years which was liable to confiscat ion and hence confiscated for the fact that same
was imported in blatant violation of Import Policy Order, 2016, contravening section 16 of
Customs Act, 1969 read with section 3(1) of Import a nd Export (Control) Act, 1950, further read
with para 9(ii)(5) of Import Policy Order, 2016, re ad with subsections (1) and (2) of section 32
and clauses (a)(c)(e) of subsection (1) Subsections (1) and (2) of Section 32 and clauses (a)(c)(e)
of subsection (1) of section 32A, punishable by cla uses 9(1), 14, 14A, of subsection (1) of section
156 of the Customs Act, 1969. A penalty of Rs.1,000 ,000/- (One Million) on the respondents i.e.
Messrs Al-Habib Enterprises and Engineering is impo sed for violation of above mentioned
provisions of laws as mentioned above. A penalty of Rs.500,000/- (Rupees Five Hundred
Thousand Only) is imposed on PSI Company Messrs Bur eau Veritas Pakistan for facilitating
clearance of non-importable vehicle as per above de tails".
6. Feeling aggrieved of the above orders, respondent No.1 preferred six separate appeals (Customs
Appeals Nos.Q-44, Q-45, Q-87, Q-88, Q-89 and Q-90 o f 2018) before Customs Appellate Tribunal
Bench-I (respondent No.3) which have been accepted by respondent No.3 vide separate impugned
judgments dated 24.03.2018 against which the instan t references have been filed by the Collector of
Customs, Model Customs Collectorate Quetta.
7. After hearing learned AAG and learned counsel for respondent No.1 we have perused the available
record and have gone through the impugned judgments passed by respondent No.3 as well as the orders-
in-original dated 27.11.2017 passed by Additional C ollector Collectorate of Customs (Adjudication)
Customs House Quetta.
8. It is observed that after assessment of the vehic les for payment of leviable duty and taxes under
section 80 of the Customs Act, 1969 (hereinafter "t he Act"), after payment of leviable duty and taxes for
the vehicles by respondent No.1 and after clearing/ release of vehicles to respondent No.1 under sectio n
83 of the Act, the available remedy of filing appea l under section 193 of the Act was not availed by t he
concerned officials of the Collectorate of Customs.
After payment of leviable duty and taxes by respond ent No.1 for the vehicles and after
clearing/release of the vehicles to respondent No.1 , the Additional Collector, Collectorate of Customs
(Adjudication) had no jurisdiction under the provis ions of the Act to issue show-cause notices dated
06.07.2017 to respondent No.1 and had no lawful aut hority and jurisdiction under the provisions of the
Act to pass the orders in original dated 27.11.2017 .
9. Perusal of the impugned judgments passed by respo ndent No. 3 reveal that respondent No.3 has
well attended all the factual and legal aspects of the case.
The respondent No.3 has resolved the factual and le gal controversy according to the relevant
provisions of the Act, the notifications/letters is sued by Ministry of Commerce, the provisions of the
Import Policy Order, 2016 and according to the dict ums laid down by the superior Courts.
10. After going through the impugned judgments passe d by respondent No.3, it is observed that
respondent No.3 has passed speaking and well reason ed judgments which are not suffering from any
illegality.
11. No question of law has arisen out of the impugne d judgments passed by respondent No.3
warranting interference by this Court under section 196 of the Act.
For the above reasons, the Custom References Nos. 4 3, 44, 45, 46, 47 and 48 of 2018 are dismissed.
SA/39/Bal. References dismissed.
;This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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