2003 PLP 456 (PTD)

A. Karim Malik for the Revenue. NASEEM SIKANDAR, J.‑‑‑The appellant imported vehicles/Dump Trucks alongwith other machinery which was permissible under the Import Policy Order, 1999‑2000 up to 30‑6‑2000. However, under the Import Policy Order 2001 w.e.f. 1‑7‑2000 import of that kind of vehicles viz. dump trucks was restricted only to "Dumpers designed for off highway use."

2. According to the Departmental Authorities the dump trucks imported by the appellant were not covered under the said definition as these were ordinary dump trucks and were trot designed for off highway use. On being served with a notice, the appellant did not contest the case nor he made any attempt to show that these vehicles were importable. Before the Adjudicating Authority only a request was made for an early decision so as to allow them to file an appeal before the Customs, Excise and Sales Tax Appellate Tribunal.,

3. In absence of any defence the Adjudicating Authority proceeded to find that the charges levelled against the appellant were established. Accordingly the vehicles in questions were confiscated in favour of the Federal Government for violation of the provisions of the Import Policy Order, 2001 read with various provisions of the Customs Act, 1969 as also S.R.O. No.1374(I)/98, dated 17‑12‑1998.

4. Learned Tribunal on first appeal proceeded to maintain the impugned order. Earlier on the basis of an opinion recorded by a State Enterprises to which a reference was made by the Tribunal in an identical appeal it was found that the dump trucks imported by the appellant fell under PCT sub‑heading No.8704.2210 as held by the apartment/Adjudicating Authority and not under sub‑heading No. 8704.1000 as claimed by the importers.

5. For the appellant, it is claimed that the Tribunal wrong maintained the order of the Adjudicating Authority by making use of alleged expert opinion which was given in some other case. It is also alleged that dumpers imported by the appellant having never been examined by the said expert, his opinion made in respect of the present assignment could not have been made use of to reach a conclusion against the present appellant. It is accordingly claimed that the impugned order of the Tribunal gives rise to as many as eight questions of law as framed in the petition.

6. Learned counsel for the Revenue‑respondent, however, points out that the appellants are changing their stances every now and then. It is pointed out that at the time of import they sought clearance of the consignment both under PCT Heading No.8704.2210 and 8704.1000. It is also stated that no defence of any kind was taken before the Adjudicating Authority that consignment was either importable under the Import Policy Order, 2001 or that the vehicles imported were designed for off highway use.

7. After hearing the learned counsel for the parties we will agree that no question of law arises out of the order of the Tribunal. Even if the contention with regard to the misapplication of expert opinion to the case of the appellant is accepted the fact remains that the appellants did not contest the import of the consignment or the fact that it was not hit by the prohibition contained in Import Policy Order, 2001. They ought to have raised all factual issues and defence at the first opportunity available to them in reply to the notice as well as before the Adjudicating Authority. The silence on their part even if not taken as admission makes their case a lot weaker. From the various annexures with the appeal which are orders of the learned Tribunal, it appears that the appellants without contesting the allegations given in the notice wanted to approach the Tribunal for release of goods on payment of nominal fine or penalty. From the various orders attached it appears that the Tribunal was releasing confiscated goods on payment of nominal fines which had encouraged the importers of banned items. It was that chance which the appellant wanted to avail in this case as well. However, that practice could not be followed any further after a judgment of this Court.

8. Through that order we accepted a number of Departmental appeals and rejected the cross‑appeals filed by the individuals/owners of confiscated vehicles after holding that an order made by the C.B.R. under section 181 of the Customs Act, 1969 had the force of statute. It was further concluded that under section 196 of the Act even this Court, muchless to say of the Tribunal, could not allow a relief which was opposed to the order/notification of the C.B.R. issued under first proviso to section 181 of the Act.

9. Also we agree with the learned counsel f6r the Revenue that reference of the Tribunal to the expert opinion obtained by them in an identical case was only a kind of support to their view that the appellant had a fair deal before the Adjudicating Authority. Mere reference to that opinion cannot in any manner be said to have rendered their order to be without rational basis. All the more so when as noted earlier, the appellant never contested or requested for physical inspection of the vehicles outside the Departmental Authorities. 9‑A. It is also not correct to suggest that the consignment was never inspected at any stage of the proceedings. According to the Adjudicating order examination of vehicles was carried out by the Departmental Authorities and those were found hit by the mischief of the Import Policy Order. Only those vehicles were confiscated which were found to be against the order while rest of them were allowed to be cleared. The show‑cause notice served upon the appellant also indicated insufficient details the nature of the vehicles imported as was as the intended action which the Department wanted to take against the Importers. Therefore, no case for remand for fresh physical examination of the vehicles at this stage is made out either.

10. Appeal dismissed in limine.

11. This Order will also govern C.As. Nos. 229 to 257 of 2002. S.A.K./T‑101/L Appeal dismissed.