Through instant reference application, applicant has proposed five questions, however , after having read out the proposed questions, learned counsel for the applicant submits that applicant will press question Nos. (A) and- (B), which--according to learned...counsel, are questions of law arising from the impugned judgment dated 31.05.2017 passed by the Customs Appellate Tribunal, Karachi Bench-I in Customs Appeal No.K-518 of 2017, which read as follows:- "A. Whether in the light of facts and circumstances of the case, the learned Appellate Tribunal has erred in law to hold that the manufacturer (Hino)'s certification is an invalid evidence to determine the age of the vehicle?
B. Whether the Appellate Tribunal has erred in law to allow release of the prohibite d/banned vehicles of older than five years, which is brought into the country in violation of Para 5(A)(vii) read with Appendix-C and Para 9(ii) of the IPO?"
2. Learned counsel for the applicant has read out the impugned judgment passed by the Customs Appellate Tribunal in the instant case and submits that while deciding the appeal the learned Customs Appellate Tribunal has erred while making reference to the Import Policy Order , 2013, whereas, according to learned counsel, the subject vehicles were imported pursuant to Import Policy Order , 2016. It has been further contended by the learned counsel for the applicant that the condition as prevailing in the Import Policy Order , 2013 with regard to age of the subject vehicles was different from the condition available in the Import Policy Order , 2016, therefore, the impugned judgment passed by the Customs Appellate Tribunal is based on misreading of facts and the legal provision involved in the instant matter . Per learned counsel, the local manufacturer of Hino Pak. Motors has disputed the claim of the respondent with regard to year of manufacturing, therefore, it has been prayed that the impugned order may be set aside and the questions proposed may be answered in negative in favour of the applicant and against the respondent.
3. Conversely , learned counsel for the respondent has raised objection with regard to maintainability of instant reference application, and submits that the questions proposed are not questions of law, whereas, the decision of the Customs Appellate Tribunal is based on finding of facts. It has been further contended by the learned counsel for the respondent that the respondent has discharged the initial burden of proof with regard to import of the subject vehicles as per paragraph 9(ii)(5) of Import Policy Order , 2016, according to which, the requirement of furnishing prior pre-shipment inspection in the exporting country from any of the internationally recognized pre-shipments inspection companies listed at Appendix-H to the effect that the said machinery or transport vehicles are (a) Euro-II complaint (b) manufactured as such by Original Equipment Manufacturer (OEM); and (c) not older than five years.
According to learned counsel, the pre-shipment inspection certificate was produced at the time of import of subject vehicles, which contains the age of manufacture as year 2012, the veracity of such certificate was duly verified by the Customs department through letter , whereas, two physical inspections were also conducted at the instance of Customs department, which also confirmed the year of manufacturer as 2012. Per learned counsel, the applicant department has based its case on purported letter from Hino Pak Motors Limited, which has no legal basis, nor the same can be regarded as conclusive proof regarding year of manufacturer of imported vehicles otherwise. Per learned counsel, under similar circumstances, a Divisional Bench of the Baloc histan High Court in Customs Reference Application No.02 of 2019 along with other References has been pleased to dismiss the customs reference applications filed by the Collec tor of Customs, MCC, Quetta and has held that once the requirement of paragraph 9(ii) (5) of the Import Policy Order are complied with then Customs authorities cannot dispute the same and that too on the basis of a letter from a local manufacturer . In support of his contention, learned counsel has placed on record copy of order dated 26.02.2019 passed by the Hon'ble High Court of Balochistan, Quetta in Custom Reference Application No.08 of 2019. Learned counsel for the respondent has also placed reliance on the case of Divisional Bench of Balochistan High Court in the case of Messers Khan Gul Government Contractor v.
Federation of Pakistan reported as 2018 PTD 415 [Balochistan High Court], which decision of the High Court has been duly confirmed by the Hon'ble Supreme Court in Civil Petition No.657 of 2018 vide order dated 26.04.2018, therefore prays that instant reference application may be dismissed as no question of law arises from the impugned order passed by the Customs Appellate Tribunal in the instant case, or alternatively , the proposed questions may be answered in af firmative.
4. We have heard both the learned counsel for the parties, perused the record and have examined the relevant provisions of Import Policy Order , 2016 i.e. paragraph 9(ii)(5), the same is reproduced as under for the sake of ready reference:-- "(5) Construction companies, mining, oil, gas and petroleum sector compani es are also allowed to import specialized vehicle-mounted machinery and transport equipment such as mobile transit mixer , concrete pumps, crane lorries, concrete placing trucks, dumpers designed for off highway use, cement bulkers and prime movers 380 HP and above etc. including those specified in Appendix-I. Import of said specialized machinery or transport equipment as mentioned above shall however be subject to prior pre-shipment inspection in the exporting country from any of the internationally recognized pre-shipments inspection companies listed at Appendix-H to the effect that the said machinery or transport vehicles are (a) Euro-II compliant (b) manufactured as such by Original Equipment Manufacturer ( OEM ); and (c) not older than five years; and"
5. It will be advantageous to reproduce the findings of the Customs Appellate Tribunal in the instant case as contained in paras. 8 to 1 1, the same reads as follows:-- "08. It is also important to observe that, when the physical examination reports conducted by the shed staff of the respondents has been available on record , in case to controvert the same, why the matter was never been referred to the Technical Committee for getting the appropriate opinion before issuance of show-cause notice and confiscation of the impugned vehicles. Now under such circumstances, it is the duty of the court to analyze the iota of evidence referred and placed before the seizing agency / respondents and also before this court for proper dispensation of justice. After perusal of the contents mentioned in Para-9(5) of the Import Policy Order , 2013, it has been noticed and observed that import of used plant, machinery and equipment for 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. It is also essential ingredie nts for importability of such machinery and equipment will subject to certification by the competent authority of export company or a recognized pre-ship ment inspection company listed in Appendix-H to the effect that the said machinery or transport equipment (a) is complaint with Euro-II emission standards (b) is in good working condition and has a remaining productive live of five years, all such mandatory requirements were properly fulfilled by the appellant. The allegations about the pre-shipment company and certification issued thereon about the age of the vehicles alleged by the respondents, under the circumstances are irrelevant. We have noted that the import of the vehicle has been made by the appellant after complying with legal requirements, whereas, status and physical specification has duly been confirmed by the relevant quarters. We may also observe that, the Customs Authorities without any factual or legal basis, have disallowed the release of the subject vehicles merely on the presumption. Nothing has been brought on record either to show that any of the terms and conditions of Para 9(ii)(5) of the Import Policy Order , 2013, have been violated by the appellant. Even, there is no allegation that the appellant construction company , have ever misused such import of old Hino Concrete Transit Mixer Trucks. It will be relevant to refer to a recent judgment passed by the Honourable High Court on 22.09.2014 in C.P. No.D-4353/2014 in case of M/s. Baig Enterprises and Engineering v. Federation of Pakistan and others , wherein under similar circumstances, and after having dilated upon the relevant provision of Import Policy , the impugned action taken by the department treating the imported old Hino Concrete Transit Mixer Trucks, to fall under H.S. Code 8704.2299, instead of H.S. Code 8705.4000 has been declared, illegal and without lawful authority .
09. In this present case, since the appellant discharged the evidential burden of proof presented to the seizing/adjudicating authority , as such it was the duty of the prosecution to present in controvertible evidence to rebut the evidence of the appellant. Respondent only relied on the letter issued by M/s. Hino Motors dated 10.02.2017 and 14.03.2017 (not mentioned in show-cause notice), it does not have any subsequent admissibility be treated as recognized evidence specially in presence of the physical examination report already given by the representative of the respondents. It is a settled principle of law that in such cases the ultimate burden of proof rested with the Customs authorities, supported by numerous reported judgments of the superior judiciary . It has also been observed that appellant miserably failed to appreciate that the documents in question were authentic and valid, hence the deliberate omission on their part to refer the same to the issuing authority yet they conducted a roving enquiry to manufacturer fabricated and doctor led evidence. Such roving/fishing enquiries are contrary to the reported judgments of the superior judicia ry in case laws PLD 1992 SC 485, 2009 PTD 1507 and 2005 PTD (Trib.)
135, where law does not allow a government functionary to resort to seizure and then embarks on a roving enquiry by shooting in the dark, in the hope that it would be able to detect some other evidence which could be used to illegally frame innocent persons. This is exactly what the seizing agency did to manufacture fabricated evidences as evident from the available record and contradiction with regard to the PSI Certificates in this case. Where the Customs Authorities are under no obligation to lead evidence and discharge any onus to prove. This part of liability reflects the responsibility under section 187 of the Customs which in fact impose the embargo on the parties to shift their burden of proof and as such respon dent has done accordingly . It has been observed by the Hon'ble Lahore High Court in case reported in 2007 PTD 2265 , that vague, unspecific and too general show Cause Notice may not enable the reader or the notified person to make out or clearly identify the particular clause/subsection or the reasons etc applicable to the case. Also Articles 117 and 118 of Qanun-e-Shahadat appears to be contrary to the general principle of law, what-so-ever alleges must be proved. Supreme Court of Pakistan has settled this legal issue, by ruling that a void Show-Cause Notice shall result into an equally void order. "It is now a well settled law, that where the initial order or notice was void, all subsequent proceedings, or superstructures build on it were also void. Where any adverse finding was given in the adjudication order on allegations or contentions or findings which are not incorporated in the show-cause notice, the entire proceedings would be rendered as void for reason of breach of natural justice, which was breach of law as held by the [Supreme Cour t in Anisa Rehman v. P.I.A.1994 SCMR 2234]. In this particular case for reasons better known to the department even having the knowledge Department fail to comply with the provisions of law which are mandatory to comply with. However , on close scrutiny of the evidences available on record as well as submissions and arguments extended by both the parties, the department failed to perform the duty under such situation where it is the only initial evidence to prove the burden through documentary evidence.
10. The principle of law that the state functionaries have no power and authority to conduct fishing and roving inquiries without possessing any definite and proper information, just in hope to unveil some concealment and illegality on the part of the tax payer/c itizen. In other words, before embarking upon any inquiry the state functionary must already possess some definite material so as to establish any illegal action having been taken by the citizen. It is imperative to place on record that equity is the soul of the law in dispensation of justice, in the instant matter , the respondent has furnis hed the substantial evidence in support of their case. The Honourable Supreme Court of Pakistan in a hallmark judgment namely Imtiaz v. Ghulam Ali reported as PLD 1963 SC 382 laid down the rule that the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the place of their rights.
All the technicalities have to be avoided unless it is essential to comply with them on ground of public policy . Any system which by giving effect to the form not to the substance defeats substantive rights is defective to the extent.
The ideal must always be a system that gives to every person what is his right under the law .
11. Hence keeping in view, all such observations made above and on strength of judgments passed by the Superior Courts and in conformity of observations made thereon, we are of the considered view that, the proceedings in the subject case are infested with inherent legal infirmities and substantive illegalities, tantamount to patent violations of prescribed law, and that too, in utter disregard of principle of natural justice, hence the impugned orders passed during the hierarchy of Customs are hereby declared null and void, ab-initio, therefore, set aside, appeal is accordingly allowed with no order as to cost. Respondents are directed to issue delay detention certificate in accordance with the prescribed provisions of law ."
6. From perusal of the provision of Import Policy Order , 2016 as applicable to the imports made by the respondent, and the judgment passed by the Customs Appellate Tribunal in the instant case, it appears that, except inadvertent reference to the Import Policy Order , 2013 by the Customs Appellate Tribunal in the instant case, there has been no dispute regarding facts of the instant case, particularly , production of required documents by the respondent at the time of import of vehicles, including pre-shipment certificate by recognized company as per Appendix-H showing the year of manufacture as 2012, and also Euro-II Compliant, not older than five years, which prima facie establishes that vehicles were imported in conformity with the requirements of paragraph 9(ii)(5) of Import Policy Order , 2016. It has been further observed that in addition to aforesaid documents produced by the respondent at the time of import, the Customs Authorities have also conducted two physical inspections in order to further verify the year of manufacture, whereafter , it was confirmed that year of manufacture of the imported Hino Trucks is 2012 (not older than five years). In view of above conclusive finding with regard to year of manufacture as recorded by the Appellate Tribunal in the instant case, there is no reason to interfere with the order of the Tribunal in reference jurisdiction. Similar controversy has also been decided by a Division Bench of Balochistan High Court in Customs Reference Application No.08 of 2019 vide order dated 26.02.2019, copy of which was placed on record by learned counsel for the respondent, wherein, it has been held as under:- "4.......In view of the above para, the machinery mentioned therein shall necessarily be subject to Pre-Shipment Inspection from a recognized Pre-Shipment Inspection Company , to judge the condition of the vehicle, to confirm its manufacturer and the year of manufacturing. The petitioner relies upon the certificate/ report received from the Hino Pak Company , showing that the vehicles are older than five years. The Policy assigned the jurisdiction only to the recognized pre-shipment companies, listed in appendix-H, to inspect the shipment and to submit a report with regard to the referred three conditions, mentioned in sub-para (5) of para-9 of the policy . In case of objection upon the year of manufacturing the petitioner should have asked the said company to re-verify/ re-confirm the year of manufacturing of the vehicles, alternately , the petitioner had the option to have sought verification from other recognized companies listed in the Appendix. The petitioner instead of doing so, asked the Hino Pak company for verification of the manufacturing years of the vehicles, which is not a recognized company , hence had no authority to submit a report as per the policy . Besides, the authenticity of the document received from the Hino Pak, a private company , is doubtful, therefore, cannot be relied upon.
5. Without prejudice to the above, even otherwise, the determination of the year of manufacturing can easily be ascertained from the import certificate and documents of the vehicle, but there is nothing on the record to believe that the custom authorities while issuing the show-cause notices and passing the order-in-original, have gone through these documents. Moreover , the petitioner did not ask the respondent to provide the documents of the vehicle so that the year of manufacturing could be ascertained. This important aspect of the case has not been dilated upon by the appellate authority as well. The determination of the age of the vehicle is a factual controversy , whereas the appellate authority in para 6 of its order that "as the issue involved a factual controversy of actual year of manufacture of the impugned vehicle". Thus, this factual controversy has finally been decided by the competent forum i.e. the tribunal. We while exercising powers under Section 196 of the Custo ms Act, 1965 cannot go into the factual controversy . The tribunal after proper appraisal of the evidence has exercised its jurisdiction justly and fairly, which needs no interference. Though, the learned AAG did his best to built a case, but the record does not support his contentions.
Thus, in view of above, these references are dismissed in limine. "
7. Learned counsel for the applicant has not been able to point out any factual error or illegality in the impugned order passed by the Customs Appellate Tribunal in the instant case, nor could assist this Court as to how, on the basis of a purported certificate obtained from local manufacturer of Hino Pak Truck, the age of imported Hino Truck can be ascertained. Moreover , record shows that respondent has discharged the initial burden to prove that the subject vehicles were imported in conformity with paragraph 9(ii)(5) of the Import Policy Order , 2016, whereas, applicant has failed to produce any evidence or material which could otherwise support the allegations of violation of pars 9(ii)(5) of the Import Policy Order, 2016. The ratio of the case relied upon by learned counsel for the respondent as referred to hereinabove is also squarely attracted to the facts of the instant case.
8. Accordingly , we do not find any substan ce in the instant Reference Application, whereas, the finding as recorded by the Appellate Tribunal in the instant case is predominately based on the findings of facts which does not suffer from any factual error or legal infirmity , hence does not require any interference by this Court. Reference in this regard can be made to the case of Irum Ghee Mills v. Commissioner Income Tax 2000 SCMR 1871 . Accordingly , the proposed questions are answered in negative against the applicant and in favour of the respondent.