2019 PLP (Trib (PTD)

SYED SARDAR HUSSAIN SHAH, MEMBER (JUDICIAL).

Muhammad Aslam son of Muhammad Bilal (appellant herein) has filed this appeal against the Order-in-Appeal No.326 of 2017 dated 09.08.2017, passed by the Collector of Customs (Appeals) Islamabad, whereby the appeal of the appellant was dismissed.

2. Facts of the case as per available record are that the appellant imported a used Hino Truck Chassis No.JHDGHIRPXXX10255 under Personal Baggage Scheme, Appendix-E to the Import Policy Order, 2016 and filed GD No.127 dated 17.11.2016 for clearance of the same at the Customs Dryport, Peshawar. The model of the Hino Truck was declared in the GD as 2012. With a view to verify the exact year of manufacture of the vehicle, the website Hino.com was consulted which transpired the year of manufacture of the truck as 1999. Relevant webpage is as under:- JHDGHIRPXXX10255 Manufacturer: Hino Motors Ltd. Manufacturer Address: Plant Country: I-I Hinodai 30Chome Hino-Shi 191 Tokyo Japan Plant Company: Plant City: Plant State: Sequential Number: X10255 To further verify the actual model of the said truck, the Hino Pak Motors Ltd., Lahore was requested vide Letter C.No.Cus/DP/ 2016/3399 dated 01.12.2016 to intimate the actual model of the vehicle in question. The Hino Pak Ltd., Lahore vide letter No.HML/KMT016-261 dated 19.12.2016 reported the model of the vehicle as 2012, while the Karachi office vide reference No.228021MDS dated 19.12.2016 expressed their inability to confirm the same. The truck being more than 05 years as ascertained from the website is not importable in terms of section 16 of the Customs Act, 1969 and section 3(1) of the Imports and Exports (Control) Act, 1950 and Para-3(1) of the Appendix-E of the Imports Policy Order, 2016, punishable under clause (9) of subsection (1) of section 156 of the Customs Act, 1969, read with section 3(3) of the Imports and Exports (Control) Act, 1950. Therefore, the vehicle was seized for violation of the above provisions of law.

3. Subsequently, after completion of the requisite formalities, the matter was placed before the Deputy Collector of Customs (Adjudication) Peshawar, who vide Order-in-Original No.14 of 2017 dated 17.03.2017 order outright confiscation of the Truck in question under section 156(1) (9) and (90) of the Customs Act, 1969 read with section 3(3) of the Imports and Exports (Control) Act, 1950.

4. Aggrieved of the above order, the appellant filed appeal before the Collector of Customs (Appeals), Islamabad who vide Order-in-Appeal No.326 of 2017 dated 09.08.2017 dismissed the appeal.

5. I have heard arguments of the learned counsel for the appellant as well as Mr. Muhammad Zahid, Superintendent and Mr. Pir Muhammad, Appraiser Customs/representatives of the respondent department and gone through the record of the case.

6. The learned lower fora confiscated the vehicle on the recovery of Warranty Book and Log Book from the Dash Board of the vehicle. These documents were recovered by Mr. Abdul Hadi, Appraiser and Mr. Shahid Akbar, Principal Appraiser during examination/inspection of the vehicle. According to the lower fora the Warranty Book and Log Book show that the vehicle is more than 05 years old. Both the officials of the customs are not the expert and without examining the vehicle through an expert, this opinion based on the recovered documents is out of consideration. The same is not a reliable evidence for seizure and confiscation of the vehicle in question.

7. Paras 2 and 3 of the show-cause notice dated 26.01.2017 reveals that the Hino Pak Motors Limited, Lahore was requested to verify the actual model of the Prime Mover truck and they reported vide letter No.HML/KMT016-261 dated 19.12.2016 that the vehicle is 2012 model while the Karachi office of the Hino Pak Motors Ltd. Vide reference No.228021MDS dated 19.12.2016 expressed its inability to confirm the same. Two documents appended with the file at pages 23 and 25 also confirm that the model of the vehicle is 2012.

8. The show-cause notice issued by the respondent is of doubtful nature as the report obtained from the Hino Pak Motors Ltd., Lahore and in this report they confirmed that the vehicle is of 2012 model while the respondent, for the reasons best known to them not got examined the vehicle through an expert to confirm its model. The appellant shall not be deprived of his legal property without bringing substantial, cogent, and proper evidence. On the other hand there is sufficient material on file, which confirms the vehicle's model is 2012.

9. In view of the above discussion, this appeal is accepted. The impugned Order-in-Appeal No.326 of 2017 dated 09.08.2017 and Order-in-Original No. 14 of 2017 dated 17.03.2017 of the lower fora are set aside. The vehicle be returned to the original owner on the prevailing customs duty/taxes. The appeal stands disposed of accordingly. HBT/73/Tax(Trib.) Appeal accepted.