1. SAJJAD ALI SHAH, J.---Through instant appeal the appellant has impugned order dated 30.01.2015 whereby a learned Single Judge, on the original side, of this Court has dismissed the appellant's plea for the release of 28 vehicles/vans as interim measure on payment of leviable duties.
2. ' The dispute between the parties in nutshell appears to be that the appellant on the b'asis of invoices and certificates of manufacturer claims that the year of manufacturing of the imported vehicles/vans subject matter of the consignment under dispute is 2014 and that all such vans are unused and fall within the definition of "New Vehicles" and, therefore, could not be held as banned for import under Clause 5(A)(vii) of the Import Policy Order 2013, which vide Appendix "C", inter alia, prohibits import of the vehicles in used/secondhand condition", whereas respondent's claim that the engine of the vehicles/vans were manufactured in the year 2012 and that they are used for about 150 milometers, therefore, their import is ban in terms of Clause 5(A)(vii) detailed in Appendix "C" of the Import Policy Order 2013.
3. ' Mr. Khalid Jawed Khan, learned counsel appearing for the appellant, has contended that the appellant on 26.11.2011 entered into an agreement with TIANJIN TIANQI GROUP MEIYA AUTOMOBILE MANUFACTORY COMPANY OF CHINA for the manufacturing and supplying of right hand drive 15 seaters vans/minibuses falling under PCT Heading 8702.9090 provided in Appendix "C" for the use in Pakistan under the appellant's own brand name "HAMZA". Since these vehicles/vans were to be specifically manufactured as right hand drive for use in Pakistan, therefore, a minimum/first order of 150 vans was required to be placed before the manufacturer. Since the demand of these vans in Pakistani market was slow, therefore, it was decided that the import would be in accordance with demand. Out of 150 vehicles/vans the appellant has already imported 120 which after securing their release were sold in the local market. In consequent to the stated arrangement, appellant in July 2014 imported remaining vans through two separate consignments of 14 vehicles/vans each and filed good declaration. However, upon inspection respondent raised objection that the engines of vans showed 2012 as the year of manufacture and further that the vans were driven for about 150 kilometers, therefore, these vans/vehicles could not be termed as new vehicle within the meaning of Clause 2(1) of the Import Policy Order, 2013. The appellant explained the position by asserting that mileage of 150 kilometers reflected test drive, whereas the year of manufacturing was always determined by its manufacturer, who had rightly issued invoices and certificate showing the year of manufacturing as 2014, as the process of manufacturing completed in the year 2014. It was further contended that to resolve this anomaly, a three members Committee was constituted to determine the genuineness or otherwise of the appellant's claim and the Committee after inspection of the vehicles gave its finding that the vehicles imported are unused and showed no sign of having plied on the roads, despite respondent refused release of consignment on the ground that the engines of the vehicles showed the year of manufacturing as 2012. It was, therefore, prayed that since the vehicles imported are neither used nor in secondhand condition, therefore, do not fall in Appendix "C" or could be termed as prohibited and restricted in terms of Clause 5(A)(vii) of the Import Policy Order, 2013 and, therefore, the respondents be directed to release the vehicles forthwith.
4. ' On the other hand, Ms. Masooda Siraj, learned counsel appearing for the respondent No.2 duly assisted by the Appraising Officer, has contended that the vehicles were imported in violation of Clause 5(A)(vii) read with Appendix "C" of the Import Policy Order 2013, therefore, could not be released. Counsel further while referring to the definition of new vehicles given in Clause 2(1) of the Import Policy Order 2013 contended that the new vehicle has been defined as "vehicles manufactured during twelve months preceding the date of importation and not registered or used prior to importation" and since the engines of the vehicles/vans imported by the appellant was manufactured in the year 2012, therefore, the same are old and banned in terms of Clause 5(A)(vii) read with Appendix "C" of the Import Policy Order 2013. It was further asserted that physical examination report of the vehicle reflects that the vehicles were used for almost 150 kilometers. In the circumstances, it was prayed that since the import was of vehicles specifically banned, therefore, the appeal be dismissed. Ministry of Commerce has almost adopted the stance of Custom (Appraisement).
5. ' We have finally heard the learned counsel for the respective parties at katcha peshi, perused the record as well as Import Policy Order 2013 with their able assistance.
6. ' While deciding the controversy so agitated before us one thing which needs to be kept in mind is that the Clause 4 of the Import Policy Order 2013 provides that "Import of all goods is allowed from worldwide sources unless otherwise elsewhere specified to be banned, prohibited or restricted in this order."
7. ' Additionally, the parties are not at dispute that the vehicles/vans imported by the appellant are classifiable under ,PCT Heading 8702.9090 which appears in Appendix "C" which details the list of items not importable in USED/SECOND HAND CONDITION. In fact Clause 5 of the Import Policy Order 2013 provides the details of item, the import whereof is prohibited/banned and/or restricted. Sub- clause (A)(vii) thereof provides that the goods specified in Appendix "C" (in which the imported vehicles/vans are classifiable) are ban for import in "USED/SECOND HAND CONDITION" except those specifically exempted therein. Consequently, the legal position which emerges appears to be that the vans/vehicles imported by the appellant are ban for import only when they are in "USED/SECOND HAND CONDITION" with the exception of any exemption in the Import Policy Order 2013, which is not relevant in the instant case, therefore, the main controversy which needs to be decided is, as to whether the vehicles/vans so imported by the appellant are in "USED/SECOND HAND CONDITION".
8. ' The appellant in support of her claim that the vehicles/vans so imported are not USED/SECOND HAND CONDITION" in Para-8 of the plaint had pleaded that a Committee was constituted by the respondents which after thorough examination had come to the conclusion that the vehicles/vans imported by the appellant are unused and showed no sign of having plied on the roads and in support of such claim has placed on record copy of the extract of noting/report of the departmental committee as Annexure-E, whereas the response filed by the Assistant Collector of Customs (Law) Model Customs, Collectorate of Appraisement (West) to Para-8 of appellant's claim toes not reflect denial of either constitution of the three member committee or of their report.
9. In order to be more specific and clear about the condition of the vehicles/vans we would reproduce herein below Para-8 of the appellant's claim in plaint and the response of the Appraisement in their written-statement:- Para-8 of appellant's claim: "That the case of the Plaintiff was referred to a three member committee of the officers of Defendant No.2 to examine the genuineness of Plaintiff's claim. The committee examined the vans and after thorough examination came to the conclusion that the vans which are imported by the Plaintiff are unused and showed no sign of having plied on the roads. However, despite .the clear and category findings of the departmental committee of Its own officers, the Defendant No.2 refused to allow release of the vans. Copy of the extract of noting/report of the departmental committee is Annex. E.
10. "Reproduction of Annexure-E"
16. Reference noting at para 16/N. A committee comprising of the following officers will examine the consignment keeping in view the observation pointed at para 16/N and submit report within 07 days.
(i) Mr. Faisal Khan, Deputy Collector (KICT)
(ii) Mr. Imran Razaq, Deputy Collector (WW)
(iii) Mr. Tahir Hussain, P. (WW)
11. Muhammad Nayyer Shafiq Additional Collector (IV) MCC Appraisement (West) Karachi DC(KICT)
17. Vehicles have been examined at West wharf along with the committee member and in the presence of Importer following are the findings:
(i) Vehicles have been found to be of 2012 model. Manufacturing date are available on platter miretted made the front seat on the left side.
(ii) Chassis number found on the miretted platter is also punched on the frame.
(iii) Mileage on the vehicles has been found to be between 99 to 146 K.M. but usually new vehicles do, some time, have this such mileage on them due to inland movements.
(iv) Vehicles are, prima facie, unused and do not show any apparent signs that these have been plying on the roads.
12. 18.. Submitted please. Sd/- 30.9.14 Sd/- Sd/- 30.9.14 Tahir Hussain Imran Razaq Faisal Khan PA (WW) DC (WW) DC (KICT)
13. Response of Collectorate Appraisement to Para 8: "That in the light of submissions made above and considering the provisions of Para 2(1) and 5(A)
(vii) read with Appendix-C and E of the IPO and also considering the contents of the plaintiffs' letter dated 11.09.2014 (annexed at pages 93-95 of the plaint) and letter dated 21.16.2014 (annexed at pages 101 of the plaint) confirms that the impugned vehicles are old of 2012 manufacturing, hence, the contents of para (8) of the plaint are vehemently denied."
14. ' Perusal of the response reflects that the respondents infact are not disputing genuineness of the appellant's claim that the vans so imported are neither in used nor in second hand condition, but are asserting that since the year of manufacture as reflected on the plates is 2012, therefore, such imported --vehicles/vans do not fit within the definition of "new vehicle" as given in Clause 2(1) of the Import Policy Order, 2013, which defines "new vehicle" as "New vehicle" means vehicles manufactured during twelve months preceding the date of importation and not registered or used prior to importation."
15. ' Though the appellant in support of her claim that notwithstanding the fact that the "year of engine manufacturing was 2012, but the process of manufacturing completed in 2014", has placed on record certificate of manufacturer, packing list and other relevant documents to show that the vehicles/vans were of 2014 model, but we are unable to find the relevancy of definition of "New vehicle" with either the importability of the vehicles/vans or of imposing ban in case any import does not fit within the definition of "New vehicle" for the reason that Clause 5 of the Import Policy Order 2013, which places prohibition and restriction on the import of various items through its sub- clause (A)(vii) prohibits/bans import of the items specified in Appendix "C" in USED/SECOND HAND CONDITION, and if these items are not in USED/SECOND HAND CONDITION then in terms of Clause 4 of the Import Polity Order 2013 their importability could not be questioned. It is no one's claim that the vehicles/vans so imported are in second hand condition and so far as the use of vehicles/vans in question are concerned, the record reflects that the use of vehicles/vans as per their meter reading ranges from 99 to 146 kilometers obviously this much use is for the test drive and such use would not render the vehicles/vans as used, therefore, in our opinion the vehicles/vans can by no stretch of imagination be declared ban for import as they are neither second hand nor in used condition.
16. ' Coming to the definition of "new vehicle" as given in Clause 2(1) of the Import Policy Order 2013, which is being enforced to prohibit/ban the import of the vehicles/vans, to our mind such definition of "new vehicle" appears to be superfluous for the simple reason that the word "New vehicle" has not been used in Clause 5(A) or its sub-clause (vii) or even in Appendix "C" which bans the import, so that the meaning given to it by the definition clause could be enforced. It is obvious that definition given to particular word in a statute and or instrument and in the present case policy could only be resorted to or enforced when such word is used by the legislature and/or by the authority in case of delegated legislation in any section or clause of such statute/instrument etc. otherwise it remains superfluous. In the instant case too, the word "new vehicle" has not been used in any of the enforcing clauses which prohibits/bans the import of vehicles, therefore, the import of vehicles which are NOT USED OR NOT IN SECOND HAND CONDITION could not be banned.
17. ' One could argue that the vehicles which are not used or not in second hand condition are obviously new, it may be so but the entire Policy does not provide the consequences of importing new vehicle which does not fit in within the definition given in Clause 2(1) of the Import Policy Order 2013 specially (as we had already observed in the beginning) when the intent of Import Policy is that "import of all goods is allowed from worldwide sources unless otherwise elsewhere specified to be banned, prohibited or restricted in Import Policy Order 2013" and there is nothing in the Import Policy Order which restricts import of "new vehicle" which does not fit in within the definition of Clause 2(1) of the Import Policy Order 2013.
18. ' In view of what has been discussed above, the appeal is allowed, the order is set aside, C.M.A.
19. No.14410 of 2014 is allowed and the respondents are directed to immediately release the subject vehicles/vans of-course subject to payment of all duties and taxes.