EASTERN CONSTRUCTION COMPANY VS ADDITIONAL COLLECTOR OF CUSTOMS, MCC OF APPRAISEMENT-WEST, CUSTOM HOUSE, KARACHI, 2018 PTD-CUSTOMS-APPELLATE-TRIBUNAL-LAHORE 1170 (2017)

(a) Customs Act (IV of 1969)---

----Ss. 2(a), 4, 16, 32, 79, 80 & 179---Notification SRO No.886(I)/2012, dated 18-7-2012---Notification SRO No.371(I)/2002, dated 15-6-2002---Mis-declaration of description and classification of goods---Issuance of show-cause notice and confiscation of goods---Appellant company imported consignment said to be containing "used Truck Mounted Crane" and determined its liability of payment of customs duty and other taxes and filed goods declaration---Examination Staff, on physical examination of the goods, reported that goods in question were "old and used trucks"---Additional Collector of Customs (Appraisement) on allegation of misdeclaration of the description of goods and classification, thereof issued show-cause notice to the appellant and ordered confiscation of goods and imposed penalty---Validity---Government had withdrawn the powers vested to Customs Officers of Executive Collectorate under S.179 of the Customs Act, 1969 through Notification S.R.O. No.886(I)/2012, dated 18-7-2012, in the cases where, charge of misdeclaration under S.32 of the Customs Act, 1969 had been invoked---Appropriate authority of adjudication of such cases rested with "Collectorate of Customs, Adjudication"---By laying hands on the case of appellant, Executive Collectorate had encroached the jurisdiction of officers of Collectorate of Customs, Adjudication, which was not permitted under law rendering the show-cause notice and the superstructure built there upon without jurisdiction---Cases of such nature were to be dealt by the competent authority defined in S.2(a) of the Customs Act, 1969, at the time of passing assessment order, which was Principal Appraiser; whereas in the present case show-cause notice had been issued by the Executive Directorate, who was a non-entity---Entire case against the appellant, in circumstances, revolved around assumption/presumption, which was nullity---Nothing was to be presumed or assumed or added or subtracted in a taxing statute---Order of the Exceptive Directorate being based upon proceedings which were infested with patent illegality, were declared to be null and void and set aside.

[Case-law referred].

(b) Interpretation of statutes---

----Fiscal statute---Nothing had to be presumed or assumed or added or subtracted in a taxing statute; while interpreting such statute, department must look to the words of the statute and interpret the same in the light of what was clearly expressed---Nothing could be implied which was not expressed---Department could not import provision in the statute so as to support assumed deficiency---No room exited for intendment; no equity about taxation no presumption as to tax and nothing was to read in---One could only look fairly at the language used, nothing else to be done.

Asim Munir Bajwa for Appellant.

Azfar Noor, Appraiser, for Respondent.

Date of hearing: 5th December, 2016.

ORDER

TAHIR ZIA (MEMBER JUDICIAL-II).---Through this order, I intend to dispose off two Custom Appeal No. K-436/2016 filed under section 194-A of the Customs Act, 1969 directed against Order-in-Original No. 480555 dated 12.02.2016.

2.Briefly facts of the case are that the Principal Appraiser, Group-VII, MCC, Appraisement, West, Karachi, that Messrs Eastern Construction Co., Karachi imported a consignment said to contain "Used Trust Mounted Crane" at declared unit value US$ 4000.00, in terms of Para 9(5) of Import Policy Order, 2013. The importer Messrs Eastern Construction Co., Karachi determined their liabilities of payment of customs duty and other taxes in terms of section 79(1) of the Customs Act, 1969 and filed Goods Declaration No.KAPW-HC-70222-20-10-2015, claiming assessment under HS Code 8705.1000, for clearance thereof. In order to confirm as to whether the declaration of the importer and payment of duty and taxes are correct, the under reference GD was selected for examination / assessment in terms of Section 80 of the Customs Act, 1969, and forwarded to the examination staff. On physical examination of the goods, shed examination staff reported that the imported vehicle declared as truck mounted crane is in fact an "old and used truck", whereas an old and used crane having independent chassis number is ordinarily mounted on the same. It has been further reported in the examination report that truck and crane are two separate items and a very old model crane has been put / fixed on the truck with ordinary type bolts which are detachable. It has been categorically confirmed that the crane is neither mounted nor adopted. The detailed examination report is reproduced as under:--

"INVOICE AND PACKING LIST NOT REQUIRED. EXAMINED THE CONTAINER IN THE LIGHT OF GD RETRIVED FROM SYSTEM. DESCRIPTION: OLD AND USED TRUCK MOUNTED CRANE, WHEREAS ON PHYSICAL EXAMINATION GOODS ARE FOUND AS UNDER; ONE UNIT OLD AND USED TRUCK BRAND ISUZU, CHASSIS NO-FRR 12DA3607758 MFG, YEAR. 1998. CAPACITY 4.9 TON, AN OLD AND USED CRANE HAVING INDEPENDENT CHASSIS WHICH IS PLACED ON THE CHASSIS OF TRUCK. LIFTING CAPACITY OF CRANE IS 4.9 TONS. THE CRANE HAVE ROTATING BASE, AND HAS SEPARATE CABIN AND OPERATOR SEAT. TRUCK AND CRANE HAVE SEPARATE CHASSIS FRAMES. WIDTH OF CHASSIS OF TRUCK AND CHASSIS OF CRANE ARE DIFFERENT. THE FITTING IS MADE WITH 2 SETS OF BOLTS EACH SIDE CLAMPING THE CHASSIS OF TRUCK AND CRANE. THE CHASSIS OF CRANE AND TRUCK WERE IN COMBINATION TO HAVE DOUBLE CHASSIS i.e. COMPLETE CRANE ALONG WITH CHASSIS AND HYDRULIC LOAD BEARING JACKS/FEET WERE FOUND TO BE FITTED/PLACED ON THE COMPLETE CHASSIS OF TRUCK. THERE WAS NO MECHANISM FOR OPERATION OF CRANE IN THE CABIN OF TRUCK. THE CRANE WAS FOUND FITTED WITH OPERATING LEVERS AT THE BACK END AND LEVERS IN THE OUTER CABIN OF TRUCK. THE CRANE WAS FOUND FITTED WITH OPERATING LEVERS AT THE BACK END AND LEVERS IN THE OUTER CABIN FOR CRANE OPERATIONS. THE CRANE IS OF VERY OLD MODELS. IN THE LIGHT OF THE ABOVE FACTS THE CRANE CANNOT BE TERMED AS PERMANENTLY MOUNTED AND ADOPTED TO CONSTITUTE A SPECIAL PURPOSE MOTOR VEHCLE. IT IS AN ATTEMPT TO IMPORT OLD AND USED TRUCK IN THE GARB OF TRUCK MOUNTED CRANE., NETWT:7900KGS, CHECH WT:100% VIDE KICT SLIP NO.647197 DATED 21/10/2015 FOUND WT:7980KGS, IMAGES ARE ATTACHED, GROUP MAY CHECK ALL ASPECTS UNDER THE LAW AS PER IPO."

In view of the above, it is clear that the importer M/s. Eastern Construction Co., Karachi, misdeclared the description of goods and classification thereof and attempted to clear an old and used truck, which is classifiable under the HS Code 8704 as per the afore-said examination report and the Explanatory Notes, in the garb of old and used truck mounted crane under PCT Code 8705.1000 in terms of Para 9 (5) of the Import Policy Order. Besides, in terms of Para 9 (5) of the Import Policy Order, pre-shipment inspection certificate of only notified PSI companies as mentioned in Appendix-H of Import Policy Order is required to be submitted/accepted, whereas in the instant case importer provided pre-shipment inspection certificate issued by M/s. Inchcape Shipping Services (Dubai) L.L.C., who are not listed in the aforementioned Appendix-H. Therefore, the same is also not acceptable being issued by a company, other than notified/ prescribed one. The importer have, thus, contravened the provisions of Sections 16 and 32 of the Customs Act, 1969 read with Section 3(1) of the Imports and Exports Controls Act, 1950 punishable under clauses (9) & (14) of Section 156(1) of the Customs Act, 1969 and section 3(5) of the Imports and Exports (Control) Act, 1950. If this had gone undetected, a truck in old and used conditioned would have been released, which is otherwise not permissible in terms of entry No. 10 of Appendix-C of the prevailing Import Policy Order. On the basis of the said formed opinion, show-cause notice dated 06.11.2015 was served on the appellant that as to why imported old and used trucks should not be confiscated under the provision of the Customs Act, 1969 referred therein and Section 3(1) of the Imports and Exports (Control) Act, 1950 and as to why penal action should not be taken against them for the reported violation. The appellant in reply, requested for re-examination of the imported "old and used truck mounted crane" as evident from page 4 of the order, the respondent refused that on the basis of his observation available in the order-in-original and which he passed on 12.02.2016 , through which he held the charges levelled in the show-cause notice as established and ordered confiscation of the imported "old and used truck mounted cranes" and imposed a penalty of Rs. 500,000.00. Operative portion of the order is reproduced here-in-under:-

I have examined the case record of the case and submission made before me. The request for re-examination does not merit consideration on two grounds; one, the examination report is unambiguous and two, after the introduction of computerized clearance system the post of MSA (Machinery Shed Appraiser) does not exist anymore. On the other side, the issue of importing trucks in the garb of truck mounted cranes is very serious. Importers have tried to misuse the legal provision of pars 9(ii)(5) of the Import Policy Order (IPO) 2013, which allows the construction companies to import secondhand crane lorries, subject to certification by the competent authority of exporting country or a recognized pre-shipment inspection company listed in Appendix-H to IPO, 2013 to the effect that the said crane lorries are; (a) compliant with Euro-1 emission standards; and (b) is in good working condition and has a remaining productive life of five years.

The WCO Explanatory Notes to the claimed HS Heading 8705 (which pertains to special purpose motor vehicles, other than principally designed for the transport of persons or goods) states that this heading covers a range of motor vehicles. Specially constructed or adapted, equipped with various devices that enable them to reform certain non-transport functions, i.e., the primary purpose of a vehicle of this heading is not the transport of persons or goods. As per the said Note, this heading includes Crane Lorries (trucks), not for the transport of goods, consisting of motor vehicle chassis on which a cab and rotating crane are permanently mounted. However, lorries (trucks) with self-loading devices are excluded from that heading. The imported consignment was examined by the concerned officials of the Collectorate to ascertain veracity of the declaration of the importer. Examination report pertaining to the said consignment was prepared and uploaded in the system. The respondents disagreed with the opinion given at the end of that report, but could not differ with the preceding reported factual status, i.e. condition of the vehicle imported items. It thus becomes obvious when the said status/condition is viewed in light of the essential requirement given in the afore-cited Explanatory Notes to HS Code 8705 for the Crane lorries (trucks) to consist of motor vehicle chassis on which a cab and rotating crane are permanently mounted (and suitably adapted accordingly, that the vehicle/ imported items do not fall under the declared PCT Code 8705 1000. This is so as the placement of the old and used crane on an old and used truck has been found to be lacking permanence and suitable adaptation to operate as a functional truck mounted crane. For these reasons, the old and used crane is separately classifiable under the relevant sub-heading of PCT Code 8426 and the old and used truck would be appropriately classifiable under PCT Code 8704.2190, as ascertained by the Group.

Once the issue of classification of an imported item stands decided, then status of its importability is to be determined under the prevalent Import Policy Order The respondents attempt to jump at the import provisions without first ascertaining the exact nature and consequent classification of the imported item is not the correct and legal approach for assessment and customs clearance of imported goods. As per serial No.10 of Appendix-C to the IPO, 2013, the vehicles falling under PCT Code 8704.2190 are not importable in secondhand or used condition. The order of the Customs Appellate Tribunal, Bench-I, Karachi dated 30.05.2012 in Customs Appeal No. K-134/2012 is not relevant for the subject proceedings as the said order pertains to import clearance of vehicles declared as prime movers under PCT Code 8701.9060. Such vehicles have an entirely different criteria / requirement to qualify for classification/ categorization as prime movers.

The Ministry of Commerce's clarification letter dated 12.03.2012 has also been cited in their defence by the respondents along with the Order-in-Appeals Nos. 5971-5972/ 2012 dated 16.04.2012 passed by the Collector of Customs (Appeals), Karachi on the strength of that letter. It was held in the said letter IPO, 2009 (prevalent at that time) does not restrict the import of old and used specialized vehicles in terms of para 9(ii)(5) read with Appendix-I (to that IPO) to factory fitted specialized vehicles. If the conditions mentioned in the above provisions of the IPO are fulfilled and vehicles are fit for the specialized end use as such, the same is importable. It is mentionable here that the dispute in this case is not whether the mounting is factory fitted or not, but is whether the "mounting" and required adaptation is permanent and proper and resultantly whether the specialized end use function can be performed by the imported vehicle/ items or otherwise.

Similarly, the appellate order No. 10182-10183/2015 dated 29.05.2015 of Collector of Customs (Appeals), Karachi pertains to declared import of old and used Hino Truck mounted Crane which, however, was ascertained by the Collectorate (and endorsed as well by the Appellate Authority) as old and used Hino Truck fitted with Crane for self loading/ unloading. Its departmental classification under PCT Code 8704.2299 was also upheld by that Appellate Authority. The Collector (Appeals), however, allowed release of that vehicle on the strength of the Ministry of Commerce's above mentioned letter dated 12.03.2012 and the afore-cited appellate order, after recording in the said Order that; in Appendix-I to the IPO, 2013 truck mounted cranes/ crane lorries are without any specific HSD code, meaning thereby that these goods are permissible for import by description only, therefore, classification in this case is immaterial; and that para-9 (ii) (4) of the IPO restricts import of trucks (87.04) in used and secondhand condition by the construction companies, while the vehicle/ items have been declared by the importer as old and used Hino Truck mounted Crane, and has not been found to be self-loading vehicle during its examination.

Though the Appendix-I of the IPO, 2013 does not specify any HS code against the truck mounted cranes/crane lorries, the imported item is, still to qualify for that description to be able to be imported in the old and used condition. In the overall legal scheme of Customs assessment, reliance is to be invariably placed on the WCO Explanatory Notes for identification, categorization and classification of the imported items. As has already been explained in the preceding para, in light of those, the instant vehicle/items cannot be termed as truck mounted cranes / crane Lorries.

Besides the above, it is worth pointing out that the Pre-Shipment Inspection Certificate is required under para 9(5) of IPO, 2013. For import of old and used crane Lorries by the construction companies, PSI is to be issued by companies specified in Appendix-H of the IPO, 2013. In the instant case, the said PSI certificate has been issued by an agent of the PSI company Messrs Lloyd's and not by the specified company Messrs Lloyds of London themselves. In view of the binding requirement of the IPO, this certificate is even otherwise not an admissible/ valid document.

In the light of foregoing, the old and used truck imported by Messrs Eastern Contraction Co., Karachi through their customs agent Messrs Crown Moving Service, Karachi, (CHAL No. 855) is hereby ordered to be confiscated in terms of clause (9) of section 156(1) of the Customs Act, 1969, without any option of its redemption. A penalty of Rs.500,000/- is also imposed upon the importer for commission of the above offence.

3.The appellant has now through instant appeal challenge the vires of the order before the Appellate Tribunal on the strength of the grounds of appeal, which the Advocate reiterated during the course of hearing and which are:--

Being aggrieved and dissatisfied by the Order-in-Original passed by the respondent in above noted case because Appellant consignment were marked to examination department for confirmation of our declaration and reported as mis-declaration of item description. The examination report confirmed that container contains one unit complete crane with its rotating mechanism and operating accessories i.e. operating cabin, operating liver in the outer cabin of crane, hydraulic load jack etc is placed on the chassis of truck of Hi no brand. The ER also reflects that the fitting of crane on truck is made with 6 sets of bolts each side clamping the chassis of truck and crane. The front back ends of chassis of crane were found to be welded with the chassis of truck and crane.

The definition of truck mounted crane" according to serial number 7 of heading 87.05 of explanatory notes are as under:--"Crane lorries (trucks), not for the transport of goods, consisting of a motor vehicle chassis on which a cab and a rotating crane are permanently mounted"

The main paragraph of explanatory notes also clarify about special purpose vehicles that either it may be constructed of adapted.

The examination was conducted by non competent staff (non technical) which were unable to determine the classification of cranes. Therefore, it is our request to kindly re-examine the goods through MSA or technical staff to clarify this matter before proceeding further. As all the above findings of ER clearly meet with definition of Crane Lorry as described in explanatory notes. Further, Re-examination of the goods is our right which should be given to us to prove trade facilitation.'

That Appellant had imported "Old and Used Truck Mounted Crane" at declared unit value US$:5500.00 per unit, in terms of Para 9(5) of Import Policy Order for his constructions projects running in Pakistan in pursuance of PEC certificate which is valid till to date for the clearance of 3 units Appellant filed GDs electronically under section 79(b) of Customs Act, 1969.

Consequent to examination, customs staff reported that goods are ONE UNIT OLD AND USED TRUCK BRAND ISUZU, CHASSIS NO-FRR 12DA-3607758 MFG, YEAR- 1998.CAPACITY:4.9 TUN, AN OLD AND USED CRANE i-ikv INDEPENDENT CHASSIS WHICH IS PLACED ON THE CHASSIS OF TRUCK. LIFTING CAPACITY OF CRANE IS 4.9 TONS. THE CRANE HAVE ROTATING BASE, AND HAS SEPARATE CABIN AND OPERATOR SEAT. TRUCK AND CRANE HAVE SEPARATE CHASSIS FRAMES. WIDTH OF CHASSIS OF TRUCK AND CHASSIS OF CRANE ARE DIFFERENT. THE FITTING IS MADE WITH 2 SETS OF SOL TS EACH SIDE CLAMPING THE CHASSIS OF TRUCK AND CRANE. THE CHASSIS OF CRANE AND TRUCK WERE IN COMBINATION TO HAVE DOUBLE CHASSIS i.e. COMPLETE CRANE ALONG WITH CHASSIS AND HYDRAULIC LOAD BEARING JACKS/FEET WERE FOUND TO BE FITTED/PLACED ON THE COMPLETE CHASSIS OF TRUCK. THERE WAS NO MECHANISM FOR OPERATION OF CRANE IN THE CABIN OF TRUCK. THE CRANE WAS FOUND FITTED WITH OPERATING LEVERS AT THE BACK END AND LEVERS IN THE OUTER CABIN OF TRUCK. THE CRANE WAS FOUND FITTED WITH OPERATING LEVERS AT THE BACK END AND LEVERS IN THE OUTER CABIN FOR CARNE OPERATIONS. THE CRANE IS OF VERY OLD MODELS. IN THE LIGHT OF THE ABOVE FACTS THE CRANE CANNOT BE TERMED AS PERMANENTLY MOUNTED AND ADOPTED TO CONSTITUTE A SPECIAL PURPOSE MOTOR VEHICLE. IT IS AN ATTEMPT TO IMPORT OLD AND USED TRUCK IN THE GARB OF TRUCK MOUNTED CRANE. NET WT:7900 KGS, CHECH WT:100% VIDE KICT SLIP NO.647197 DATED 21/10/2015 FOUND WT:7980 KGS, IMAGES ARE ATTACHED. GROUP MAY CHECK ALL ASPECTS UNDER THE LAW AS PER IPO."

Thereafter, Appellant received show-cause notices which was properly replayed later on respondent No 3 passed impugant order in original who was pleased to outright confiscate used truck mounted crane also impose penalty of Rs.20,000/= on the Appellant which was challenged in accordance with Law.

That same kind of used truck mounted crane cleared from Appraisement Collectorate is quite identical with our case. Therefore, it is our humble request to kindly do justice with us and release our consignment on the same parameters adopted by the appraisement Collectorate and save us from huge loss being incurred day by day in shape of port demurrage, container detentions etc.

With regards to respondent query regarding pre-shipment inspection please be informed that we had attended for pre-shipment inspection of subject vehicle as inspected in accordance with law.

Similarly a letter / application was also filed in which it was requested to remove the used truck mounted crane to the CPF Bonds to save port charges which was not allowed and passed impugned order in original which is liable to be set aside in the interest of justice.

That same kind of used truck mounted crane was allowed by Collector of Customs (Appeals), Karachi vide Order-in-Appeals Nos. 5850 to 5852/2012 dated 01.03.2012 observed that as regards whether the same are importable in terms of the Import Policy Order in vogue it is acknowledged that the appellants have submitted copies of pre-shipment inspection certificates issued by the recognized companies and thus meet the condition of as laid down in Para 10 (i) (b) of Appendix C read with Annexure-H of the Import Policy Order in vogue. The respondent/department filed an appeal before this Tribunal against the said order before this Tribunal vide Customs Appeals Nos.K-132/2012, K-134/2012 and K-135/2012 while deciding these appeals the Tribunal upheld the order of Collector with observation that the subject specialized vehicles fulfils the criteria laid down in para 9(ii)(5) of the Import Policy Order, 2011-12 and dismissed the appeals of department. The counsel for appellant also produced copies of Order-in-Appeals Nos.5968/2012 dated 14.04.2012 and Order-in-Appeals Nos. 5971 to 5972/2012 dated 16.04.2012 wherein the specialized/modified vehicles has been released on same facts and law points on duty and taxes without filing any appeal against these orders and fully complied. The counsel for appellant also provided copies of orders passed by this Tribunal in Customs Appeals Nos.K-359 to 361/2006 dated 21.08.2007 and Customs Appeals Nos.367 to 371/2006 dated 19.12.2007 wherein transit mixers were released on duty and tax subject to conditions laid down in para 6 of Import Policy Order, 2004-05 and department's view point was rejected regarding import of specialized vehicles.

That Respondent No. 2 has merely relied on false information of their market rivals and had thus illegally detained the subject consignment of the Appellant.

It is a fundamental Law that all citizens are equal before the Law in terms of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 and to avoid discrimination Appellant's vehicle may be released accordingly because same kind of vehicles are freely importable in the current import policy.

Article 25 of Constitutions of Islamic Republic of Pakistan 1973 says about Equality of Citizen:

"All Citizens are equal before the Law and are entitled to equal protection of Law".

4.The appellant Advocate in addition to the grounds incorporated in para 3 supra further stated as under:

(i) That the case of the appellant upon invoking section 32 of the Custom Act, 1969 stood ousted from the jurisdiction of the Executive Collectorate in terms of S.R.O. 886(I)/2012 dated 18.07.2012 and falls within the jurisdiction of Collectorate of Customs Adjudication-I. The respondent in the capacity of Additional Collector of Clearance Collectorate, encroached the jurisdiction of the Collectorate of Customs Adjudication, which is not permitted under law, rendering the show-cause notice without jurisdiction and as such of no lawful authority/ jurisdiction'.

(ii) That as regard to contravention of Section 16 and para 9(5) of the Import Policy Order, 2013, the authority to adjudicate the such cases rest with the Principal Appraiser of the Clearance Collectorate in terms of SRO 371(I)/2002 dated 15.06.2002. The respondent while laying hands on the case of the appellant encroach the powers of his subordinates, which is not permitted under law, rendering the show-cause notice suffering from availability of the powers. Hence, void and ab-initio and of no legal effect. without powers.

5.No cross objection under Subsection (4) of Section 194-A of the Customs Act, 1969 has been submitted by the respondents Collectorate to this date, instead comments were submitted, verbatim of which are incorporated here-in-below for the sake of regularization fair play and justice.

Denied. The examination report confirms that a very old model used crane having independent chassis was placed and bolted with the independent chassis of Isuzu brand old and used (1998 model) truck. The crane is not permanently mounted/adopted to constitute special purpose vehicle.

The Explanatory Notes to HS 8705 pertain to special purpose motor vehicles, other than those principally designed for the transport of persons or goods. These notes state that this heading covers a range of motor vehicles, specially constructed or adapted, equipment with various devices that enable them to perform certain non-transport functions i.e. the primary purpose of a vehicle of this heading is not the transport of persons or goods. As per the said note, this heading includes crane lorries (trucks), not for the transport of goods, consisting of motor vehicle chassis on which a cab and rotating crane are permanently mounted. However, lorries (trucks), with self-loading devices are excluded from that heading.

The essential requirements given in the Explanatory Notes to HS 8705 are permanent mounting of devices and suitably constructed or adapted to perform certain non-transport functions. The placement of an old and used crane welded and bolted to an old and used truck chassis lacks permanence and suitable adaptation to operate as functional truck mounted crane. For these reasons, the old and used crane is separately classifiable under the relevant sub-heading 8426 and the old and used truck would be appropriately classifiable under HS 8704.2190.

Denied. The classification has correctly been made in accordance with physical attributes of the goods and Explanatory Notes to HS 8705 and 8704. The request for re-examination was uncalled for because the examination report unambiguously depicted true picture of the goods and the post of Machinery Shed Appraiser (MSA) has ceased to exist in the WeBOC system. The appellant, instead of insisting for re-examination of the goods, should have furnished certificate of the Original Equipment Manufacturer (OEM) to this effect that the goods imported in this case were manufactured or properly adopted as truck mounted crane.

6.Rival parties heard and case record perused and so the relied upon citation. Prior to dilating upon the core issue of the case in question, it is appropriate and just to decide the issue of jurisdiction and powers. The Government of Pakistan has withdrawn the powers vested to Custom Officers of Executive Collectorate under Section 179 of the Custom Act, 1969 through Notification S.R.O No. 886(I)/2012 dated 18.07.2012, in the cases wherein, charge of mis-declaration under the provision of Section 32 of the Customs Act, 1969 has been invoked. Therefore, the appropriate authority for adjudication of such cases rests with Collectorate of Customs, Adjudication, not with the respondent. By laying hands on the case of the appellant, the respondent encroach the jurisdiction of Officers of Collectorate of Customs Adjudication , which is not permitted under law, rendering the show-cause notice and the super structure built thereupon vide order dated 12.02.2016 is without jurisdiction. Hence, void and ab-initio and coram non judice and this stood validated from the reported judgments 2002 PTD 2457, PLD 1971 Supreme Court 61, PLD 1973 Supreme Court 236, PLD 1964 SC 536, 2001 SCMR 838 and 2003 SCMR 1505, in PLD 1996 Karachi 68, 2006 PTD 978 and PLD 1971 Supreme Court 184.

7.It has been noted that the case in question is in regards to contravention of para 9(5) of the Import Policy Order, 2013, meaning thereby of importability in the absence of misdeclaration and revenue loss. Cases of such nature are to be dealt by the competent authority defined in Section 2(a) of the Act at the time of passing assessment order under Section 80 and Rule 438 of the Act/Rules, which is Principal Appraiser, as enunciated in S.R.O. 371(I)/2002 dated 15.06.2002 and none else. Whereas, in the instant case show-cause notice has been issued by the respondent, who is a non entity, he laid hands on the instant case while usurping the powers of his subordinate i.e. Principal Appraiser, which could have only exercised under Section 4 of the Customs Act, 1969 during the course of administrative work not for the purpose of adjudication, which are to be exercised by the authority, who is empowered to do so and this has been held by the Superior Judicial Fora in reported judgment relied upon by the appellant and this has been held by the Hon'ble Supreme Court of Pakistan in the case "Izhar Alam Farooqi Advocate v. Sheikh Abdul Sattar Lasi and others" (2008 SCMR 240) has held that the Institution specifically barred to adjudicate any matter to the extent of certain mandatory limits shall not be competent and had no jurisdiction to deal with any such matter exceeding the limit subscribe under the law. Hon'ble Supreme Court of Pakistan has held in the case of "Sardar Ahmed Yar Khan Jogzai v. Province of Balochistan" (2002 SCMR 1022) that "where essential features for assumptions of jurisdiction is contravened or forum exercises powers not vested in it or exceed authority beyond limit prescribed by law, the judgment is rendered coram non judice and in operative." Hon'ble Supreme Court of Pakistan in re "Faqir Abdul Majeed Khan v. District Returning Officer and others" (2006 SCMR 1713) has observed that "by now it is well settled that any order which suffers from patent illegality or without jurisdiction, deserve to be knock down. Whereas, the Hon'ble Supreme Court took a very serious notice in reported judgment (2001 SCMR 1822) Ali Muhammad v. Chief Settlement Commissioner, wherein the Hon'ble Chief Justice presiding a Bench in the capacity of Judge of Supreme Court as was then their lordship was held that "whenever order are passed by an Officer without caring whether jurisdiction vests in him or not, it is prima-facie reflect on his conduct as well as competency. It is also to be noted that whenever authority is exercised in such a manner then no other inference can be drawn except that the functionary has transgressed his jurisdiction for the consideration other than judicial one and the Courts seized with such orders may recommend any action against the said Officer because neither the executive authorities nor judicial forum will pass a wrong order because the jurisdiction in both the capacities is conferred upon such authorities to discharge their function in accordance with law which has bestowed upon them to function in that capacity and if there is abuse of power by such officer then no hesitation should be felt in passing stringent stricture against officer keeping in view of norms of justice". By adhering the ratio decidendi set-forth by the Apex Courts, I hold that the respondent issued show-cause notice and passed order-in-original in the absence of non availability of powers, rendering it ab-initio, null and void and as such of no legal effect.

8.Reverting back to the core issue of the case. I have observed that despite clarity in clause (5) of subsection (2) of Section 9 of Import Policy Order, 2011-2012, the dispute is created needlessly that as to whether "used truck mounted crane" is banned/not importable under the Import Policy Order, 2013 is "Crane" or "Truck" and for determination of the said fact it would had been appropriate for the respondent to examine the fact that in which condition it has been arrived in Karachi and presented to the Customs Official for examination or assessment, which if analyzed with the examination report posted in the GD reservoir for perusal of the assessing officer was reading as "old and used truck mounted cranes, whereas on physical examination goods are found as under: one unit used truck brand Isuzu Chassis No. FRR12DA-36077658MFG, year 1998 capacity 4.9 tons, an old and used crane having independent cases which is placed on the chassis of truck. Lifting capacity of crane is 4.9 tons. The crane have rotating base and have a separate cabin and operator seat, trucks and cranes have separate chassis frame width of chassis and truck and chassis of crane are different. The fitting is made with 02 sets of bolts each side clamping the chassis of truck of truck and crane. The chassis of crane and truck are combination were in combination to have double chassis i.e. complete crane along with chassis and hydraulic load bearing found to be fitted/paste on the complete chassis of truck. There was no mechanism for operation of crane in the cabin of truck. The crane was found fitted with operating levers at the back end levers in the outer cabin for crane operation. The crane is of very old models in the light of the above facts the crane cannot be termed as permanently mounted and adopted to constitute a special purpose motor vehicle." The uploaded examination report although confirms that the old and used truck mounted crane is not a purpose made "crane" instead is an adopted version of crane, which is mounted on the old and used truck. Meaning thereby that it has been imported as "old and used truck mounted crane" and presented for examination under Section 198 and Rule 435 of Sub-Chapter III of Chapter XXI of the Customs Rules, 2001 through Goods Declaration filed under Section 79(1) and Rule 433 for assessment under Section 80 and Rule 438 ibid. Therefore, it is incumbent upon the customs officials to examine and assess it "as presented" for levy of duty and taxes, instead of presuming/forming opinion that the truck and crane are separate entity, which otherwise not because cranes are of many sorts among those one is a self driven and operated and second is crane mounted on truck, which is being imported by the appellant. As regard to the presumption that the intention of the appellant is that after clearance of the old and used truck mounted crane, he will detach and sell those as separate unit i.e. as "crane" and "truck" and therefore, on the presumption of the said apprehension, the examining and assessing officials opined that truck mounted crane is not importable in terms of para 9(5) of the Import Policy Order 2013 is without any substance as nothing is visible or proved by the respondent or his subordinate through tangible evidence.

9.I have observed, that the entire case of the respondent revolves around assumption/presumptions, this attitude is nullity to the interpretation of statute which says that nothing has to be presumed or assumed or added or subtracted in taxing statute and "In interpreting the taxing statute, the customs must looks to the words of the statute and interpret it in the light of what is clearly expressed. It cannot imply anything which is not expressed, it cannot import provision in the statute so as to support assumed deficiency. There is no room for intendment. There is no equity about a tax. There is no presumption as to a tax nothing is to be read in, nothing is to be implied. One can only look fairly at the language used, nothing else to be done. That the respondent also lost sight of the vital aspect that in terms of Rules of Business, 1973, the Ministry of Commerce Government of Pakistan, Islamabad is the competent authority which governs the Imports/Export Policies of Pakistan i.e. determination of the import status and importability of any goods into the country is the sole privilege and prerogative of the aforesaid Ministry and under no circumstance can be assumed or usurped by any other Ministry or Forum. To further crystalize this point, this forum may refer to one of the core function of the Federal Board of Revenue, Islamabad, Ministry of Finance, Islamabad, which comprise of award of exemption of customs duties and taxes to imported/exported goods. Any other Ministry or forum or authority cannot assume this function. The role of Federal Board of Revenue, Islamabad and MCC of Appraisement-West is limited to the implementation of the Import and Export Policies and Rules framed by the Ministry of Commerce, Islamabad, As such the ruling issued by the Ministry of Commerce Government of Pakistan , Islamabad is binding on all the Ministries and Forums including FBR and its allied Collectorate. I have reached to the said conclusion on the basis of the judgment of the High Court of Sindh reported as 2015 PTD 1607 M.Yasin & Co. v. FOP.

10.That the said proposition of law has been validated by the Ministry of Commerce vide letter No. 12(21)/2005-Imp.I in the capacity of monitoring authority in regards to Imports and Exports that "the IPO, 2009 does not restrict the import to factory fitted specialize vehicle only instead these includes adopted vehicle subsequent through a manufacturing process and these stood classified in para 9(ii) (5) of IPO, 2009." Appellant imported truck mounted crane is in the finished condition, it is immaterial that whether those are adopted version and that stood prove from the pre-shipment inspection certificate of INCHCAPE Shipping Services (Dubai) L.L.C. Dubai bearing No.DXB15QA0035D dated 14.10.2015 reading as "used Isuzu truck mounted Kato Crane model 1998, upon the result of survey opined that under normal circumstances usage and providing that a proper and satisfactory repairs and maintenance, schedule is carried out as recommended by manufacturer, the 1 unit used Hino truck mounted Kato crane 4.90 tons may be able to continue in service for at least five years. The vehicle is compliant with Euro, II Emission Standards. The test report ref. No. At 247/Cranes/Ikran/0841, of the referred vehicle is maintained in our records and can be referred on request". There was no cause or reason available for the respondent to ignore the clarification issued by the Ministry of Commerce in the case of appellant as i.e. applicable with full force in the case of the appellant or other importers, which imports akin types of adopted version of specialized vehicle.

11.When the opinion of the respondent and his subordinates stands negated from the clarification of the Ministry of Commerce, the observation/validation given by me in para 9 supra is the correct approach i.e. examination and assessment of the goods imported are to be made "as presented" not on the basis of assumption that after clearance of the goods, it will be modified, detached or given a different shape. It is not the job of Custom Official, to form opinion to such extent, which is not visible or eventuality had surface at the time of examination and assessment. This type of approach is not appreciable under any circumstances as this is nothing but an exercise in futility and root cause of unwarranted litigation and tantamount to defeat the purpose and implementation of Import Policy Order, 2013 and collection of revenue for the exchequer. I fail to digest the mode and manner under which the Clearance Collectorate works as such type of cases were made since 2000 and on every occasion the decision by this Tribunal and the Superior Judicial Fora are in field with the declaration that the act and commission of the Clearance Collectorate is without lawful authority. The Collectorate instead of reading the judgments in rational and positive manner ignores those and frame contravention report for the purpose of adjudication, creating hardship for the importers and depriving the exchequer from collection of levied duty and taxes. In order to abreast the Collectorate about the essence and spirit of Sections 198 and 80 of the Customs Act, 1969, reference is made to the judgment of this Tribunal given in Customs Appeals Nos. 487/200, 353/01, 731 and 732 of 2001, wherein, the Division Bench held:

"Though originally vehicle were not designed as a dump truck, but by a subsequent change, before their export were brought into the category of dump truck to be classifiable under PCT heading 8704.2210 availing exemption of customs duty and sales tax. The department's contention that the subsequent alteration cannot change the original status of vehicle in the circumstances of the case does not appear to be correct, but it is not the conduct of importer, but of exporter which by alteration has changed the use of vehicle and brought it in the category of dump truck and it is after this change he entered into contract with the importer and invoice dated 05.02.2000 was executed for use Mazda Dumper and not for light commercial truck. So any change took place in the subject item can only be taken at the manufacturing process. The applicability of any PCT heading is always on the finished goods and in the condition brought before assessing authority." (Emphasis supplied)

12.In Special Custom References Nos. 88 to 102 filed by Collector of Customs, against the orders of the Appellate Tribunal in Custom Appeals Nos. 7678 to 7690/2013 dated 27.10.2013 of the subject appellant, the Hon'ble High Court of Sindh dismissed the references vide order dated 27.08.2014 and which have been reported as 2015 PTD 963 while holding that:--

"Custom authorities without any factual or legal basis had disallowed the release of the vehicle in question, merely on the presumption that, importer would not use the imported concrete transit mixer for mixing and transporting of liquid cement; and put subsequently use such vehicles as normal loading trucks for transportation of other goods by removing the welded adopted and fabricated concrete transit mixer --- Customs Authorities, under the law were required to conduct examination, process the Goods Declaration, and to make assessment of the consignment imported "as presented" on the basis of import presentation of Goods Declaration examination and assessment; and not on assumption or suspicion that subsequent to clearance of such consignment, the goods could be used for some other purpose by altering and changing it structure, particularly, when no such eventuality had surface---Such authority if allowed to be exercised by the Customs Authorities, would result in multiplicity of unnecessary litigation; and was likely to defeat the purpose, and implementation of Import Policy --- nothing had been brought on record, either to show that any of the terms and conditions of para 9 (ii) (v) of the Import Policy Order, 2013 had been violated by the importer, nor it was the case of the department that importer did not require such vehicle for the purpose as defined in the said para of the Import Policy Order, 2013."

(Emphasis supplied)

13.In view of foregoing, it is established that the order of the respondent is based upon proceedings which are infested with patent illegalities and which are held to be null and void. This being so, the impugned order of the respondent is set aside and the subject appeal is accordingly allowed as no order to cost. The appellant may apply to the relevant authority for a delay and detention certificate which application shall be considered and disposed of by the said authority strictly in accordance with law and in the light of section 14-A(2) of Customs Act, 1969.

HBT/26/Tax(Trib.) Appeal allowed.