Find a Lawyer

Appeal No.Cus.200/PB of 2010, decided on 13th July, 2010.

----Ss. 32, 156(1)(10-a)(14), 168 & 194-A---S.R.O. 358(I)/2002, dated 15-6-2002---S.R.O. 576(I)/2006, dated 5-6-2006---Seizure and confiscation of vehicle---Misdeclaration---Appeal---Deputy Collector of Customs Anti-Smuggling Division vide his order-in-original ordered outright confiscation of seized vehicle in favour of the State---Said order-in-original was upheld by Collector of Customs---Validity---At the time of seizure of the vehicle, appellants produced all the documents relating to its import and subsequent sale---Import of vehicle was as "defence store" and there was no restriction on "defence store" for the subsequent sales thereof---Vehicle was imported under notification No.S.R.O. 358(I)/2002 dated 15-6-2002 and it did not contain any conditionality---Subsequent S.R.O. 576(I)/2006 dated 5-6-2006, which was for the privileged organizations on which the sale permission was required, was totally irrelevant for the "defence store"---Import and subsequent sale of vehicle in question was prior to the issuance of said subsequent notification---Vehicle in question which had been imported and sold as per law, was ordered to be released to the rightful owner.

Isaac Ali Qazi for Appellants.

Pir Zaheer-ud-Din, Superintendent for Respondents.

Date of hearing: 13th July, 2010.

:---This appeal has been filed by M/s. Automobile Corporation of Pakistan (Pvt.) Ltd., Karachi & two others (hereinafter called as the appellants) against the Order-in-Appeal No.250 of 2010, dated 6-4-2010, passed by the Collector of Customs, Sales Tax and Federal Excise (Appeals), Peshawar.

2. Precisely, the stated facts of the case as recapitulated from the available record are that on 11-11-2008, the staff of Anti-Smuggling Unit, Nowshera stopped a Mercedes Benz Prime Mover, Model 2000, having Chassis No.WDB-9540322K311051 and Engine No.541-922-00-038044. The occupant of the vehicle namely Abdul Wali was asked to furnish documents proving legal import or lawful possession of the vehicle who furnished a photocopy of Gate Pass No.5486, dated 22-10-2008 issued by Auto Mobile Corporation (Pvt.) Ltd. He also furnished a photocopy of GD-1 No.5366, dated 4-11-2003 IGM-598/03, dated 31-10-2003, which revealed that Messrs Tools and Jigs International (Pvt.) Ltd., 76-E Hill View Plaza Blue Area, Islamabad filed a GD bearing Machine No.5366, dated 4-11-2003 declaring therein defence stores and availed the benefit of S.R.O.358(I)/2002, dated 15-6-2002. A letter dated 14-1-2005 issued by Tools and Jigs International (Pvt.) Ltd. Co., Islamabad revealed that the following vehicles purportedly imported by the said firm as defence stores were sold out to Messrs Pakistan Auto Mobile Corporation:--

3. The aforementioned letter was silent about any authorization (Sale Permission) for the purpose which was required to have been obtained as the said GD does not reflect payment of duty and taxes, meaning thereby that exemption from same was availed at the time of import. Messrs Auto Mobile Corporation further disposed of the above referred vehicles in the open market without realizing duties and taxes which was against the spirit of S.R.O.358(I)/2002 dated 15-6-2002 (Exemption availed). Furthermore, defence stores appearing at S.No.31A of the said S.R.O. were chargeable to customs duty @ 15% ad val, however, the purported GD does not reflect any payment of customs by the respondents (now appellants). Hence the detained vehicle was seized under Section 168 of the Customs Act, 1969 for violation of the provision of S.R.O.358(I)/2002, dated 19-6-2002 read with section 32 of the Customs Act, 1969 and the case papers were submitted for adjudication. Consequently, on adjudication of the matter, the Deputy Collector of Customs, Anti-Smuggling Division, Peshawar vide his Order-in-Original No.131 of 2009, dated 8-4-2009 ordered outright confiscation of the seized Mercedez Truck bearing Chassis No.WDB9540322K311051 of Model 2000 in favour of the State, in terms of section 156(1) (10a) & (14) of the Customs Act, 1969.

4. Being aggrieved of the impugned Order-in-Original, the appellants filed an appeal before the Collector of Customs, Sales Tax and Federal Excise (Appeals), Peshawar, who vide his Order-in-Appeal No.250 of 2010, dated 6-4-2010, upheld the impugned Order-in-Original. Hence the present appeal to this Tribunal.

5. The learned counsel for the appellants stated that the Mercedez Benz Prime Mover was intercepted on 11-11-2008 and at the time of seizure all the documents relating to its import and subsequent sale were produced. The Engine Number and its Chassis Number was also found genuine after forensic test. The import of the goods was as defence store and there is no restriction on the defence store for the subsequent sales thereof. It was imported under Notification No.S.R.O.358(I)/2002, dated 15-6-2002, and it does not contain any conditionality. The application of the Sections in the show-cause notice is inappropriate and irrelevant and later on relying on S.R.O.576(I)/2006, dated 5-6-2006, which is for the privileged organizations on which the sale permission was required and it is totally irrelevant for the defence stores and this S.R.O. is not mentioned in the show-cause notice. He further contended that the Import and the subsequent sales thereof is prior to the issuance of the notification and has requested to release the said Mercedez Benz Prime Mover unconditionally. The prosecution stated that the vehicle was not declared and the PCT Heading given was of auto-parts and he stressed that the S.R.O.576(I)/2006, dated 5-6-2006 has not been followed and the sale permission was also required from the Federal Board of Revenue.

6. Perusal of the case record reveals that the said S.R.O. is of subsequent date, prior to import or sale of the Prime Mover, hence it is not applicable and secondly this is specific for diplomatic organizations and is not applicable on the defence stores. The second argument of the respondent was that it has been imported under PCT Heading of the auto-parts is also overruled as declaration was made before the customs, who should have corrected the same when they were releasing the Prime Mover instead of auto-parts. The value declared is nominal as Rs.1 of the Prime Mover. I do not find any restriction or condition on sale of defence stores and the prosecution had badly failed to produce any notification wherein there is any restriction of sate on the defence stores. There is no denying fact that the goods have been imported by the KRL and sold by them, which has not been disputed by the prosecution. Therefore, it is found that the Prime Mover has been imported and sold as per law and it is ordered to be released to the rightful owner. The case stands disposed of accordingly.

H.B.T./149/Tax(Trib.) Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.