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C.P.NO.D-4353 OF 2014
Present:
Mr. Justice Aqeel Ahmed Abbasi.
Mr. Justice Muhammad Junaid Ghaffar
M/s Baig Enterprises & Engineering --------------------------Petitioner
Versus
The Federation of Pakistan & others-------------------------Respondents
Date of hearing: 22-09-2014
Petitioner: Through Mr. Ashikue Raza, Advocate
Respondent No.1: Through Mr. Dilawar Hussain, Standing
Counsel.
Respondent No.2: Through Mrs.Masooda Siraj
alongwith Mr.Ilyas Ahsan Law Officer
Legal and Mr. Abdul Aziz Appraising Officer.
J U D G M E N T
MUHAMMAD JUNAID GHAFFAR, J:- Through instant petition, the petitioner has impugned the alleged unlawful detention of 24 Used Hino Concrete Transit Mixture Trucks imported by the petitioner, at the port since 21.04.2014 without issuance of any notice or assigning any reason thereof and has further sought directions to respondents No.2 and 3 for release of the same.
2. Briefly, the facts as stated in the memo of petition are that the petitioner, who claims to be engaged in the business of Construction has imported Old and Used construction machinery i.e. Used Hino Concrete Transit Mixture Trucks (hereinafter referred to as Concrete Mixer) for its exclusive use in construction projects. The said Concrete Mixers are importable in terms of Para 9 (ii) (5) of the Import Policy Order, 2013 on fulfillment of certain conditions. It has been further stated that the petitioner is in possession of requisite Pre-Shipment Inspection certificate in terms of Import Policy Order, 2013, whereby it has been certified that the said Concrete Mixers are in good working condition and have a remaining productive life of 5 years and further certified they are also compliant with Euro-II emission standards. It is further stated that the Goods Declarations in respect of the said Concrete Mixers have been filed by the petitioner since 21.04.2014, whereafter the petitioner has complied with all the requirements for the clearance of the same, however, respondents No.2 and 3 malafidely and without assigning any reason or issuing any show cause have withheld the clearance of all the Concrete Mixers. It has been stated that the petitioner is left with no option except to invoke the Constitutional jurisdiction of this Court under Article 199 of the Constitution as there is no other alternate and adequate remedy against the arbitrary action on the part of the public functionaries as referred to hereinabove.
3. Mr. Ashikue Raza learned Counsel for the petitioner has contended that the impugned action of the respondents No.2 and 3 is illegal, unlawful and based on malafide which has already caused huge financial losses and injury to petitioners business. Per learned Counsel, the petitioner has complied with all the requirements of law including the Import Policy Order 2013, especially Para 9 (ii) (5) of the said policy, however, the respondents without assigning any reason whatsoever; have withheld the clearance of Concrete Mixers as aforesaid. Learned Counsel further contended that the Ministry of Commerce, Government of Pakistan has addressed its letter dated 14.3.2014 to respondents No.2 whereby a clarification has been issued in respect of the consignments of Concrete Mixers imported by the petitioner, directing the respondent No.2 to release the said Concrete Mixers, as the petitioner has fulfilled all the requirements of Import Policy Order, 2013. Learned Counsel further contended that in the past respondents No.2 & 3 have released several consignments of Concrete Mixers of various importers including the petitioner, without raising any such objection, and now without assigning any reasons or lawful justification, have detained the same. In support of his contention, learned Counsel has relied upon the case of Messrs Elga Controls through Proprietor versus Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad and 6 others reported in 2010 PTD 487.
4. Conversely, Mrs.Masooda Siraj Advocate duly assisted by Mr. Ilyas Ahsan and Mr.Abdul Aziz, departmental representatives, contended that instant petition is not maintainable as it involves disputed facts and determination of correct specification and physical description of the imported goods is involved. Learned Counsel further contended that petitioner has approached this Court, without exhausting departmental remedies available under the Customs Act, 1969. Per Learned Counsel even otherwise, the petitioner has failed to fulfill the requirement of Para 9 (ii)(5) of Import Policy Order, 2013 and has imported normal/ordinary Trucks under the garb of Concrete Mixers as the vehicles are nothing but normal Old and Used Trucks on which drums, made of iron steel sheet are fitted. According to the learned Counsel these drums are temporarily fitted with the body of the Truck just to give them a look and resemblance of a standard Concrete Mixture. Per learned Counsel, in fact the imported Concrete Mixers are not special purpose Vehicles i.e. Transit Mixer, rather the imported vehicles are normal Trucks, principally designed for the transportation of goods classifiable under HS Code 8704.2299, import of which is not permissible in Old and Used condition in terms of Para 5(A)(vii) of the Import Policy Order, 2013. Learned Counsel further contended that the respondents had formed a Committee to ascertain the actual description and classification of Concrete Mixers in question which has conducted the examination of the imported Vehicles and the Committee is of the opinion that instant Concrete Mixers when presented for clearance and assessment, do not meet the criteria of a genuine Concrete Mixer Truck; hence not entitled to be allowed release in terms of Para 9 (ii)(5) of the Import Policy Order, 2013. Learned Counsel further contended that though the Goods Declarations were filed on 21.04.2014, however, during pendency of this petition a show-cause notice dated 08.09.2014 has been issued, therefore the petitioner may be directed to avail the remedy under the departmental hierarchy.
5. We have heard both the learned Counsel and perused the record. Since a short controversy is involved, hence by consent of both the learned Counsel, instant petition is being finally disposed of at Katcha Peshi stage.
6. It appears from the record that the petitioner has imported 24 Old and Used Hino Concrete Mixers in different Shipments and has filed Goods Declarations with respondents for clearance of the same on 21.4.2014. The petitioner is a registered Construction Company and is in possession of License bearing No.09780 valid up to 31.12.2014 issued by the Pakistan Engineering Council, whereby it has been certified that the petitioner has been licensed under the Construction and Operation of the Engineering Works byelaws 1977. The petitioner has also obtained Pre-Shipment Inspection report from M/s Bureau VERITAS, an approved Pre-Shipment Inspection Company which has also verified that under normal circumstances, usage and provided that a proper and satisfactory maintenance schedule is carried out as recommended by the manufacturer, the Used Hino Concrete Mixers may be able to continue service for at least five years. It has been further certified that the vehicle is compliant with Euro-II Emission Standards. On the basis of such documentation read with Para 9 (ii) (5) of the Import Policy Order 2013, Goods Declarations have been filed by the petitioner by claiming assessment / classification of the imported Concrete Mixers under HS Code 8705.4000 which covers special purpose Vehicles i.e. Concrete Mixer Lorries. It is pertinent to note that the rate of duty under HS Code 8705.4000 under which the petitioner has sought clearance is 30%, whereas under HS Code 8704.2299 under which the respondents intend to assess the imported Concrete Mixers is also 30%, hence, admittedly, there is no issue with regard to rate of duty and taxes. In fact the bone of contention between the parties is in respect of the Import Status of the Vehicles in question. It is a matter of record that import of Old and Used Machinery Trucks/Vehicles are not freely Importable under the Import Policy Order, 2013 as detailed in Annexure C. However, there is an exception to this restriction as provided under Para 9 (Import of Used Plant, Machinery and Equipments) of the Import Policy Order, 2013. The petitioner is seeking release of the subject Concrete Mixers in terms of Para 9(ii) (5) of the Import Policy Order, 2013 and claims to have fulfilled the requirements stipulated therein. Whereas on the other hand, the respondents case is that the Concrete Mixers imported by the petitioner are not classifiable under HS Code 8705.4000 as these are not specialized Vehicles, but ordinary Trucks used for transportation of goods, duly altered / modified to give them resemblance to a Concrete Mixer, more appropriately classifiable under HS Code 8704.2299, import of which is not permissible in Old and Used condition under the Import Policy Order, 2013. It would be advantageous to refer to Para 9 (ii) (5) of the import Policy, 2013 which is in the following terms:
9. Import of used plant, machinery and equipment
(i) __________________________________
(2)___________________________________
(3)___________________________________
(ii) Import of Secondhand Plant, Machinery and Equipment and Specialized Machinery by Construction, Mining and Petroleum Sector:-
(1)______________________________________
(2)______________________________________
(3)_______________________________________
(4)_______________________________________
(5) Construction companies, mining, oil, gas and petroleum sector companies are also allowed to import specialized vehicle-mounted machinery and transport equipment such as mobile transit mixture, concrete pumps, crane lorries, concrete placing trucks, dumpers designed for off highway use, cement bulkers and prime movers 380 HP and above, etc specified in Appendix-I, However, import of such items will be subject to certification by the competent authority of exporting country or a recognized pre-shipment inspection company listed in Appendix-H to the effect that the said machinery or transport equipment (a) is compliant with Euro-II emission standards (b) is in good working condition and has a remaining productive life of five years.
7. On perusal of the aforesaid Para, it appears that several Companies including Construction Companies are allowed to import various machinery/Vehicles in Old and Used condition including specialized mounted machinery and transport equipment, such as mobile transit mixture, concrete pumps, crane lorries, concrete placing trucks, dumpers, designed for off highway use, cement bulkers and prime movers 380 HP and above, etc specified in Appendix-I. However, permission to import such items is subject to certification by the competent authority of the exporting country or a recognized Pre-Shipment Inspection company as listed in Appendix-H, to the effect that the said machinery or transport equipment (a) is compliant with Euro-II emission standards (b) is in good working condition and has a remaining productive life of five years. Insofar as these two conditions are concerned, the petitioner is in possession of Pre-Shipment Certificate carried out by a company which is listed in Appendix-H of the Import Policy Order, 2013 namely M/s Bureau VERITAS who has certified that Concrete Mixers in question are Euro- II compliant and can continue service for at least five years. It appears that there is no specific objection or denial in the comments filed on behalf of respondents No.2 and 3 with regard to the authenticity and genuineness of the Pre-Shipment Inspection Certificates issued in favor of the petitioner, and neither the learned Counsel for respondents has controverted such certification during hearing of instant petition. However, in spite of the fact that the petitioner has complied with all the requisite formalities, the petitioners consignments have been detained since 21.04.2014 at Port, without issuance of any Show Cause Notice or assigning any other reason thereof in-justification of such action. The petitioner under these circumstances, where, neither any show cause has been issued nor any appropriate action in accordance with law has been taken by the respondents, is left with no other remedy and has rightly invoked the jurisdiction of this Court under Article 199 of the Constitution by filing instant petition on 25.08.2014, on which date notices were ordered to be issued to the respondents. It appears that only, after issuance of Court Notices, the respondents have issued Show Cause Notice to the petitioner on 08.09.2014, after having illegally detained the consignment of the petitioner, and therefore, this Court vide order dated 09.09.2014 has passed orders to the effect that no adverse order should be passed against the petitioner till next date of hearing. In view of hereinabove facts and circumstances of this case, we are of the view that instant petition is maintainable and the objection raised by the respondents in this regard is misconceived, hence the same is hereby repelled.
8. Adverting to the merits of the case it further transpires from the record that respondent No.2 had sought clarification from the Ministry of Commerce, Government of Pakistan, in respect of the consignment of the petitioner, whereby certain clarification was sought with regard to the import of Construction machinery by registered Construction companies in terms of Para 9(ii) (5) of the Import Policy Order 2013. It was specially informed by respondent No.2 that Concrete Mixers imported by the petitioner, were reportedly welded /adapted and Customs Authorities were of the view that adapted and fabricated Concrete Transit Mixture Trucks cannot be cleared in terms of Para 9(ii)(5) of the Import Policy Order 2013. However, Ministry of Commerce, Government of Pakistan, clarified vide letter dated 14.3.2014, addressed to respondent No.2 whereby it has been stated that the conditions stipulation in Import Policy Order stand fulfilled when the conditions mentioned in Para 9(ii) (5) of the Import Policy Order, 2013, are met irrespective of the fact whether the subject items were built as such or adapted/fabricated to suit the end use. For ease of reference the said letter dated 14-03-2014 issued by the Deputy Secretary (Import/Export) Government of Pakistan, Commerce Division is reproduced hereunder.
NO.12 (21)/2005/Imp-II
GOVERNMENT OF PAKISTAN
COMMERCE DIVISION
Tel: 9204750
Fax: 9205241 Islamabad, the 14th March, 2014.
The Collector Customs
MCC (Appraisement),
Customs House,
Karachi.
Subject: - Clarification Regarding Transit Mixtures Imported by
M/s. Baig Enterprises & Engineering, Karachi.
M/s Baig Enterprises & Engineering Karachi has approached M/o Commerce with the request to clarify the provisions of Import Policy Order, 2013 regarding import of construction machinery by registered construction companies, especially concrete transit mixtures recently imported by M/s Baig Enterprises & Engineering which are reportedly welded/adapted. The customs authorities are reluctant to clear the consignment on the grounds that they are adopted/fabricated concrete.
2. The request of M/s Baig Enterprises & Engineering has been considered in this Ministry and it is re-iterated that as already clarified vide this ministry letter of even number dated 9th and 12th March, 2012, the stipulations of IPO stand fulfilled when the conditions mentioned in Para 9(ii) (5) are met irrespective of the fact whether the subject items were built as such or adapted/fabricated to suit the end use. (Emphasis supplied)
3. In view of the above, the transit mixtures imported by M/s. Baig Enterprises & Engineering, Karachi can be released if they fulfill the conditions mentioned in IPO and if otherwise in order.
Sd/-
(Muhammad Maqsood Khan)
Deputy Secretary (Import/Export)
Copy for information to:
M/s.Baig Enterprises & Engineering, Karachi .
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 No.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 No.2 &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 & 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 there-under. Though the respondents No. 2 & 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/s 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 favor of the petitioner and there is no justifiable reason for not following such directions by respondents No. 2 & 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 SRO 193(I)/93 dated 08.03.2013 issued in exercise of powers conferred under sub-section (1) of section 3 of the Imports & 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 No.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 14.03.2014 in the case of petitioner, then there is hardly any justification left with respondent No.2 & 3 to arrive at any other or different conclusion.
11. In the case of Elga Controls (Supra) the Honble 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 2008-09, 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 2008-09 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. We are respectfully in agreement with the decision of the learned Single Judge of Lahore High Court in the above case, as we are of the view that merely on presumption it cannot be said at the stage of clearance, that the imported Concrete Mixers would not be used for such purposes, and rather would be used as Truck for transportation of goods. Even otherwise, in our opinion, the law does not restrict any such usage and such apprehension has also been repelled as above by the Lahore High Court in the aforesaid case.
13. In view of hereinabove discussion, we are of the view that instant petition merits consideration as the imported Concrete Mixers have been detained at Port unlawfully, with malafide intentions, without assigning any plausible justification or issuance of any show cause notice to the petitioner, whereas the show cause notices issued on 08.09.2014 after issuance of pre-admission notice in the instant petition by this Court, appears to be an afterthought and an effort to thwart proceedings initiated by the petitioner through instant petition. In our opinion, issuance of show cause notice at such a belated stage, during pendency of instant petition and after passing of four months of illegal detention of petitioners consignment at port, otherwise appears to be an attempt to justify the illegal detention of consignment without any reason or justification. Consequently the show cause notice dated 08.09.2014 cannot be acted upon any further and is hereby declared to be void ab-nitio. Therefore, we had accordingly allowed instant petition vide short order dated 22-09-2014, whereby we had directed the respondents to release the Hino Transit Mixture Trucks imported by the petitioner as detailed in Para 2 of the petition under HS Code 8705.4000, after payment of necessary duties and taxes applicable thereon and had further directed to issue delay and detention Certificate in terms of Section 14-A of the Customs Act, 1969 and these are the reasons in support thereof.
JUDGE
JUDGE
Talib
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